ELI CORUM, Plaintiff, v. ROBERT M. WENSLEY, and DONOVAN RUFFIN, Defendants No. 3:22-CV-241-DCLC-DCP United States District Court, E.D. Tennessee, Northern Division Filed July 19, 2023 Counsel Avery C. Lovingfoss, Luke Davis Durham, Brock Shipe Klenk PLC, Knoxville, TN, for Plaintiff. Nikol D. Pluess, Richard T. Scrugham, Jr., Matthew A. Grossman, Frantz McConnell & Seymour, LLP, Knoxville, TN, for Defendants. Poplin, Debra C., United States Magistrate Judge MEMORANDUM AND ORDER *1 This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and Standing Order 13-02. Now before the Court is Plaintiff's Motion to Compel Forensic Examination [Doc. 29]. Defendants respond in opposition to the motion and asserted a countermotion in their response [Doc. 30]. Plaintiff did not file a reply brief in support of his motion and did not respond to the Defendants' countermotion. This motion is ripe for adjudication. See E.D. Tenn. L.R. 7.1(a). For the reasons explained below, the Court DENIES WITHOUT PREJUDICE both motions [Docs. 29 and 30]. I. BACKGROUND The parties appeared before the undersigned on May 16, 2023, pursuant to section 4(g) of the Scheduling Order [Doc. 12] [See Doc. 28]. Relevant to the instant matter, the parties had disputes over Defendants' document production in response to Plaintiff's Request for Production of Documents (“RFPs”). Generally, Plaintiff argued that Defendants had not produced many responsive documents. Given that this case relates to the parties' posts on social media, Plaintiff had doubts that Defendants were participating in discovery in good faith. Defendants responded that they produced what they possessed, but Defendant Wensley acknowledged that he had deleted a social media post he made on the InvestorLift Community Facebook group. During the hearing on May 16, 2023, the parties reported that Defendants served responses to Plaintiff's Request for Admission (“RFAs”) on May 12, 2023 [Id. at 2]. According to Plaintiff, “Defendants' responses may warrant a motion for spoilation of evidence and a request for a forensic examination” [Id.]. In light of the parties' representations about Defendants' discovery responses to the RFAs, the Court determined that the discovery dispute was not ripe for resolution [Id. at 4]. Further, because Plaintiff believed that Defendants spoliated evidence, the Court granted the parties leave to file appropriate motions because spoilation of evidence issues are not typically amendable to an informal discovery dispute conference [Id.]. The Court, however, ordered the parties to participate in a meaningful meet and confer in an attempt to resolve any discovery issues [Id.]. The instant motions followed. The Court will begin with Plaintiff's motion. Arguing that Defendants have refused to participate in discovery, Plaintiff states that “[i]ndependent verification is necessary to confirm whether or not all responsive communications have been produced and to determine whether the messages Defendant Wensley admits he deleted can be recovered and produced” [Doc. 29 p. 1]. Plaintiff states that on May 24, 2022, he served Defendants with discovery, requesting that they produce documents [Id.]. In response, Defendant Wensley produced a few documents and Defendant Ruffin produced no documents [Id. at 2]. Plaintiff asserts that Defendants swore that the responses were true [Id. at 3]. According to Plaintiff, “The Defendants intentionally lied in responding” [Id.]. For instance, on April 12, 2023, Defendant Wensley supplemented his response to RFP No. 5 as follows: “This post cannot be produced, as it was deleted by Mr. Wensley sometime in either late February or early March of 2023” [Id. at 3 (citation omitted)]. Plaintiff asserts, “Although Defendant Wensley attempts to mitigate his intentional spoilation by claiming the deleted post was attached to [Plaintiff's] Complaint, this is false and, moreover, only shows that he understood the importance of the post to [Plaintiff's] case when he deleted it” [Id. at 4 (emphasis omitted)]. Plaintiff states that Defendant Wensley's claim is false because Plaintiff only “has a partial picture of the post, but it does not include the full post or the numerous comments from the Defendants[.]” [Id.] *2 In addition, on April 5, 2023, Plaintiff propounded RFAs and an additional interrogatory “specifically targeted at the deletion of evidence” [Id. at 6]. Plaintiff states that in response, “Defendant Wensley admitted that he had deleted even more documents that were called for by the original requests for production” [Id.]. Based on the above, “Plaintiff requests that this Court order a forensic examination of the Defendants' cellphones (or other electronic device or devices) which could contain materials responsive to the Plaintiff's discovery requests or from which responsive materials could be recovered” [Id. at 9]. Defendants respond that “[t]he on going discovery process in this matter has revealed that both the Plaintiff and Defendant Wensley have deleted and/or unsent Facebook posts and messages that were responsive to discovery requests by the opposing party” [Doc. 30 p. 1]. Defendants submit that Plaintiff “conveniently omits the fact that [he] similarly sent and later unsent a total of six Facebook messages” [Id. at 2]. With respect to Defendant Ruffin, Defendants assert that Plaintiff's request to forensically examine his electronic devices should be denied because there is no evidence that he failed to produce discovery. With respect to Defendant Wensley, Defendants assert that his privacy interests outweigh the need for a forensic examination. Defendants state that “Plaintiff's [m]otion only references materials that were deleted or unsent from Defendant Wensley's Facebook account” [Id. at 5 (emphasis omitted)]. Defendants contend that allowing a forensic examination of Defendant Wesley's personal devices is not proportional to Plaintiff's needs in this case. Defendants state that “[i]ssuing a subpoena to Facebook would be a far less intrusive method for Plaintiff to obtain the materials he seeks, should they be recoverable” [Id.]. Submitting that Plaintiff did not provide a protocol that is tailored to protect privacy interests, Defendants argue “[f]ederal courts generally deny motions to compel forensic examinations of personal electronic devices” if a protocol is not proposed [Id. at 6 (citations omitted)]. Here, Defendants argue, Plaintiff did not propose any protocol. Defendants maintain that the parties can issue subpoenas to Facebook to obtain the evidence they seek. Should this Court determine that a forensic examination of Defendants' personal electronic devices is warranted, however, Defendants request that they be allowed to forensically examine Plaintiff's personal electronic devices given that Plaintiff also unsent responsive Facebook messages. Plaintiff did not file a reply, nor did he file a response to Defendants' countermotion. II. ANALYSIS For the reasons explained below, the Court DENIES WITHOUT PREJUDICE both motions [Docs. 29 and 30]. Before turning to the merits of the parties' motions, the Court must address a preliminary matter. Neither motion includes the required certification pursuant to Rule 37(a)(1), and the Court has serious concerns that the parties did not participate in a meaningful meet and confer as directed [See Doc. 28 p. 4]. The Court's concern arises from the motion practice on this issue. Plaintiff's motion seeks a forensic examination of Defendants' cellular phones, alleging that they have not in good faith participated in discovery and that Defendant Wensley deleted Facebook posts and unsent messages [Doc. 29]. In response, Defendants also accuse Plaintiff of unsending Facebook messages, and they propose that the parties issue subpoenas to Facebook “as a far less intrusive method” to obtain the evidence that they seek [Doc. 30 p. 5]. But should the Court allow forensic examinations of Defendants' cell phones, Defendants seek a forensic examination of Plaintiff's cell phone. Plaintiff did not reply to Defendants' proposal to issue subpoenas to Facebook, nor did he file a response to Defendants' request to forensically examine his cell phone. See E.D. Tenn. L.R. 7.2 (“Failure to respond to a motion may be deemed a waiver of any opposition to the relief sought.”). Thus, it is not clear whether the parties discussed issuing subpoenas rather than conducting expensive forensic examinations, and it appears, by not responding, Plaintiff does not oppose a forensic examination of his cellular phone should the Court order that Defendants' cellular phones be forensically examined. *3 Nevertheless, the Court will address the parties' dispute. “As a general matter, it is beyond question that a party to civil litigation has a duty to preserve relevant information, including ESI, when that party ‘has notice that the evidence is relevant to litigation or should have known that the evidence may be relevant to future litigation.’ ” John B. v. Goetz, 531 F.3d 448, 459 (6th Cir. 2008) (quoting Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 436 (2d Cir. 2001)), abrogated on other grounds by Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (2016). Given that “litigants are generally responsible for preserving relevant information on their own, [compelling forensic examinations and production of computer hard drives], if at all appropriate, should be employed in a very limited set of circumstances.” Id. Even so, “courts have permitted restrained and orderly computer forensic examinations where the moving party has demonstrated that its opponent has defaulted in its discovery obligations by unwillingness or failure to produce relevant information by more conventional means.” NOLA Spice Designs, LLC v. Haydel Enters., Inc., No. 12-2515, 2013 WL 3974535, at *3 (E.D. La. Aug. 2, 2013) (citing White v. Graceland College Center, No. 07-2319-CM, 2009 WL 722056, at *7 (D. Kan. Mar. 18, 2009)); see also John B., 531 F.3d at 459 (“[D]istrict courts have, for various reasons, compelled the forensic imaging and production of opposing parties' computers.” (citations omitted)); France v. Chippewa Cnty., No. 2:20-CV-248, 2021 WL 11431784, at *1 (W.D. Mich. Nov. 22, 2021) (“Based on this duty [to preserve evidence], and because forensic imaging increases the risk of improper disclosure of private or confidential information, district courts rarely compel the use of forensic imaging unless a party can demonstrate either that evidence has been destroyed or a ‘real danger’ that it will be.” (quoting John B., 531 F.3d at 450)). Given the implicated privacy interests, forensic examinations should be narrowly tailored. See John B., 531 F.3d at 460 (recognizing that forensic imaging is a permissible discovery use but should be treated cautiously where the request is broader than the data's relevance to the case); Lipian v. Univ. of Mich., No. 18-13321, 2019 WL 6339646, at *2 (E.D. Mich. Nov. 27, 2019) (“The Court's intention was to restrict the forensic examination to the narrowest parameters necessary to permit Defendants to investigate its theory that text messages are missing from the record.”). The Court must consider the proportionality of the request and must consider the privacy rights of the affected party. Korotki v. Cooper Levenson, Apr., Niedelman & Wagenheim, P.A., No. CV2011050CPOMJS, 2022 WL 2191519, at *6 (D. N.J. June 17, 2022) (“Courts have also recognized that privacy interests may be taken into account when evaluating proportionality, particularly in the context of a request to inspect personal electronic devices.”). Here, Plaintiff seeks a forensic examination of Defendant Ruffin's cellular phone because Defendant Ruffin did not produce any documents, other than those he disclosed in his initial disclosures. Defendants respond that “Plaintiff's motion does not allege or otherwise speculate that Defendant Ruffin has failed to produce materials that may be recovered through [a] forensic examination” [Doc. 30 pp. 4–5]. As the Sixth Circuit Court of Appeals has explained, “[m]ere skepticism that an opposing party has not produced all relevant information is not sufficient to warrant drastic electronic discovery measures.” John B., 531 F.3d at 460 (citation omitted). The Court finds Plaintiff's request for a forensic examination of Defendant Ruffin's cellular phone not well taken at this time. *4 Plaintiff also seeks a forensic examination of Defendant Wensley's cell phone, relying on his supplemental responses to discovery wherein he acknowledged that he deleted a post on Facebook and unsent Facebook messages. Defendants respond that in support of Plaintiff's motion, he “only references materials that were deleted or unsent from Defendant Wensley's Facebook account” [Doc. 30 p. 5 (emphasis omitted)]. Defendants suggest that “[i]ssuing a subpoena to Facebook would be a far less intrusive method for Plaintiff to obtain the materials he seeks” [Id.]. Given that this case relates “heavily” to the parties' social media activity [see Joint Position Statement p. 3], it is unclear to the Court why Plaintiff needs a forensic examination of Defendant Wensley's cellular phone or other electronic devices. See Hardy v. UPS Ground Freight, Inc., No. 3:17-CV-30162-MGM, 2019 WL 3290346, at *3 (D. Mass. July 22, 2019) (“Generally, a court will deny a motion to compel forensic imaging of personal electronic devices if the party seeking the image fails to show that it will likely produce the material it seeks, if an alternative, less invasive means of obtaining the evidence exists, or if the motion is not accompanied by a proposal for a protocol appropriately tailored to protect the privacy concerns of the opposing party.”). Further, Plaintiff did not file a reply addressing Defendants' proposal, and the Court agrees that issuing a subpoena to Facebook is an appropriate and less intrusive step prior to ordering any forensic examinations of cell phones. Given that the Court declines, at this time, to order a forensic examination of Defendants' cellular phones, the Court also declines to allow Defendants to forensically examine Plaintiff's cellular phone [See Doc. 30 p. 8 (explaining that issuing subpoenas to Facebook is appropriate but requesting a forensic examination of Plaintiff's cell phone if the Court finds forensic examinations to be appropriate)]. Thus, at this time, no party has justified a forensic examination of cell phones based on their Facebook activity. III. CONCLUSION For the reasons explained above, the Court DENIES WITHOUT PREJUDICE Plaintiff's Motion to Compel Forensic Examination [Doc. 29] and DENIES WITHOUT PREJUDICE Defendants' countermotion [Doc. 30]. Should the parties believe a forensic examination of cellular phones or other electronic devices is warranted in the future, they may file a motion but only after they participate in a good faith meet and confer on this issue. Such motions, if any, SHALL include a certification that the parties participated in a good faith meet and confer on this issue and SHALL describe any appropriately tailored protocols to protect privacy concerns. IT IS SO ORDERED.