BOGGS CONTRACTING, INC., BOGGS MATERIALS, INC., BOGGS TRANSPORT, INC., DAVID C. BOGGS, CARL A. BOGGS, III, KEVIN J. HAYES, JR. and KEVIN J. HAYES, JR., Plaintiffs, v. BERNARD FREISMUTH and BSS&K CONSULTING, INC., Defendants Case No. 6:21-cv-2088-CEM-EJK United States District Court, M.D. Florida Filed January 07, 2022 Mendoza, Carlos E., United States District Judge ORDER *1 THIS CAUSE is before the Court on Plaintiffs’ Motion for Entry of Plaintiffs’ Proposed Forensic Discovery Protocol (Doc. 27) and Defendants’ Motion for Approval of Discovery Protocol (Doc. 28). Recently, this Court entered an Order enjoining Defendants from certain actions and granting Plaintiffs expedited forensic discovery. (Dec. 27, 2021 Order, Doc. 25, at 17–18). That Order also directed the parties to confer in an attempt to agree on a confidentiality agreement and forensic discovery protocol but directed the parties to file a motion if they could not do so. (Id. at 17). The parties have been unable to agree on a discovery protocol, and each seeks the entry of their proposed protocols. There are three primary differences between Plaintiffs’ and Defendants’ protocols. First, Plaintiffs propose to use their own forensics vendor to conduct the discovery, while Defendants request that Plaintiffs be required to use Defendants’ vendor or, alternatively, to hire a third party vendor that is agreed upon by Plaintiffs’ and Defendants’ vendors. (Pls.’ Discovery Protocol, Doc. 27-1, at 2; Defs.’ Discovery Protocol, Doc. 28-1, at 2–3). Defendants have not provided a basis for this Court to require Plaintiffs to use a vendor other than the one it has already engaged for this litigation. Certainly, given the circumstances of this case, which are laid out in the Court's Preliminary Injunction Order, Plaintiffs will not be required to use Defendants’ vendor. Further, Defendants have not explained why Plaintiffs should be required to incur the additional expense and delay of hiring a new vendor. Second, Plaintiffs’ protocol does not require Defendants to agree on the search terms that the forensics vendor will use, while Defendants’ protocol requires agreement or, in the absence thereof, Court intervention. (Doc. 27-1 at 2; Doc. 28-1 at 3). Again, Defendants have not explained why agreement on search terms is necessary here. The production of any data resulting from those searches will be subject to Defendants’ objections, so the Court does not see a need to require agreement on search terms. Finally, Plaintiffs’ protocol provides that after running the searches, Plaintiffs’ vendor “will provide Plaintiffs with search term hit reports and file directory listings detailing the documents and information responsive to the criteria. From the data in these reports, Plaintiffs will prepare a list of User Generated Documents they seek to review.” (Doc. 27-1 at 3). Defendants will then have an opportunity to review such documents for privilege, during which time “Plaintiffs, their counsel, and any experts or consultants it may engage will not have access to” those documents. (Id.). On the other hand, Defendants propose that their vendor (or the agreed-to third party vendor) must provide Defendants with the search term hit reports and file directory listings, and from there, Defendants will review all of those hits and listings for privilege before turning over any information, and only after those challenges are resolved will Plaintiffs be able to prepare a list of User Generated Documents they seek to review. (Doc. 28-1 at 3–4). *2 Defendants complain that Plaintiffs’ protocol could result in “involuntary waiver of the attorney-client privilege.” (Doc. 28 at 3). However, as detailed above, Plaintiffs’ protocol has carefully put protections in place so that the only information available to Plaintiffs prior to Defendants’ review for privilege are search term hit reports and file directory listings. Defendants have failed to explain how this limited information could contain attorney-client privileged information. Moreover, the Court has already determined that there is the possibility of imminent harm in this case, (Doc. 25 at 8–12), so time is of the essence. Plaintiffs’ protocol provides the most expeditious procedure for engaging in this discovery, while still providing appropriate protections. Therefore, Plaintiffs’ protocol will be adopted. The Court expects the parties to participate fully and expeditiously, and any attempts to delay or obstruct this Court-ordered discovery may result in sanctions. Therefore, it is ORDERED and ADJUDGED as follows: 1. Plaintiffs’ Motion for Entry of Plaintiffs’ Proposed Forensic Discovery Protocol (Doc. 27) is GRANTED and Plaintiffs’ Forensic Discovery Protocol (Doc. 27-1) is ADOPTED and made a part of this Order. 2. Defendants’ Motion for Approval of Discovery Protocol (Doc. 28) is DENIED. DONE and ORDERED in Orlando, Florida on January 7, 2022.