SCOTT E. GAMMONS, Plaintiff, v. ADROIT MEDICAL SYSTEMS, INC., et al., Defendants No. 3:21-CV-173-TAV-DCP United States District Court, E.D. Tennessee, Northern Division, AT KNOXVILLE Filed December 14, 2022 Poplin, Debra C., United States Magistrate Judge 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 are the following motions: (1) Plaintiff's Motion for Discovery Sanctions Pursuant to Rule 37 and For Additional Time to Comply with Court Order (“Motion for Sanctions”) [Doc. 54], (2) Defendants' Motion for Extension of Time [Doc. 58], and (3) Defendants' Motion to Enforce Plaintiff's Agreement to Pay for Forensic Evaluation (“Motion to Enforce”) [Doc. 61]. For the reasons explained below, the Court DENIES WITHOUT PREJUDICE Plaintiff's Motion for Discovery Sanctions [Doc. 54] and Defendants' Motion to Enforce [Doc. 61] and DENIES AS MOOT Defendants' Motion for Extension of Time [Doc. 58]. I. BACKGROUND The pending matters before the Court relate to the undersigned's Memorandum and Order filed on November 16, 2022 (“November Order”) [Doc. 51], wherein the Court granted in part and denied in part Plaintiff's request to compel a forensic examination of Grazyna Gammons's (“Gammons”) and Kelley Patten's (“Patten”) cellular phones. Relevant to the instant motions, the Court ordered as follows, “The parties SHALL complete the forensic examination by November 30, 2022” [Id. at 7]. On November 30, 2022, Plaintiff filed his Motion for Sanctions [Doc. 54], requesting sanctions relating to the forensic examination. Plaintiff states that in light of the brief period in which he had to conduct the examination, his counsel contacted a representative of LBMC, which has a Knoxville office, on November 16, 2022, to discuss arrangements for an expedited forensic analysis within the time frame directed by the Court. On the following day, a LBMC representative stated that the work could proceed as long as there were no conflicts. On November 18, 2022, Plaintiff's counsel sent an email to counsel for Gammons and Patten advising that arrangements were being made with LBMC to undertake the forensic analysis and that they needed to discuss specific search terms as soon as possible. Plaintiff's counsel stated, “[W]e expect Ms. Gammons and Ms. Patten to deliver their smartphones to LBMC offices within 24 hours (or on Monday if notice is given today)” [Id. at 3]. Defense counsel responded on the same day that he already began the process to obtain the forensic analysis and signed a contract to get the phones reviewed for $3,750.00. LBMC quoted Plaintiff $1,800.00. On November 18, 2022, Plaintiff's counsel responded that it was his discovery request and that he expected to select the forensic examiner [Id. at 4]. In addition, Plaintiff's counsel stated that LBMC quoted a cheaper price and that “[t]his process certainly is a two-way street given that it involves electronic devices of your clients” [Id.]. Plaintiff's counsel did not receive an email in response, so on November 23, 2022, he sent another email stating that he needed “to know what instructions and search terms were provided to [the] selected forensic contractor” [Id. at 5]. He also requested the contract with the forensic examiner [Id.]. Defendants' counsel did not respond. Plaintiff states that the intent of the November Order was for Gammons and Patten to provide Plaintiff with their cell phones so that he could conduct a forensic analysis to search for electronic communications. *2 Plaintiff claims, “This conduct on part of Ms. Gammons and Ms. Patten has an obviously intentional design to prevent Plaintiff from undertaking an independent, reliable[,] and trustworthy forensic examination as contemplated by the Court” [Id. at 6]. Based on the above, he requests the following sanctions: (1) a presumption to be read to the jury to the effect that Gammons and Patten engaged in written communications concerning Plaintiff's protected whistleblowing activity, which they thereafter suppressed from discovery; (2) prohibiting Gammons and Patten from supporting any defenses they otherwise intend to assert to the effect that they did not engage in communications concerning Plaintiff's protected whistleblowing activities; (3) staying the proceedings until the Court's November Order is obeyed; (4) treating as contempt of court the failure to obey the Court's order to produce Gammons's and Patten's personal cell phones to Plaintiff's counsel as requested in his motion and granted by the Court in its November Order; and (5) ordering Gammons and Patten to pay Plaintiff's reasonable attorney's fees. Plaintiff also seeks additional time to complete discovery in a reliable and trustworthy manner and, if necessary, to supplement his response to Defendants' motion for summary judgment. On November 30, 2022, following Plaintiff's Motion for Sanctions [Doc. 54], Defendants filed a Notice of Compliance [Doc. 56], explaining that they submitted a declaration to Plaintiff by the forensic examiner detailing the search criteria used and any relevant messages identified. A few days later, on December 2, 2022, Defendants filed a Motion for Extension of Time [Doc. 58], requesting until January 12, 2023, to file a response to Plaintiff's Motion for Discovery Sanctions. For grounds, Defendants served Plaintiff with a Rule 11 motion, meaning that he has twenty-one (21) days to withdraw his motion to avoid sanctions. Defendants state, “In order to accomplish the purpose of Rule 11, the Defendants should not be required to expend resources on responding to a motion that may be, and should be, withdrawn [Id. at 1]. Defendants state that they requested that Plaintiff withdraw his Motion for Sanctions, but he did not respond [Id.]. Defendants submit, “With no alternative, on December 1, 2022, counsel for the Defendants served a motion for sanctions pursuant to Rule 11 on the Plaintiff” [Id.]. On December 13, 2022, Plaintiff responded [Doc. 62], stating that Defendant's Motion for Extension of Time [Doc. 58] is moot because “Plaintiff has no intention of withdrawing its previously filed Motion for Discovery Sanctions [Doc. 53] and so informed Defendants' counsel by email correspondence on December 8, 2022” [Doc. 62 p. 1]. Finally, on December 8, 2022, Defendants filed their Motion to Enforce [Doc. 61], seeking an order that Plaintiff pay for the forensic examination that he requested. Defendants state that Plaintiff agreed to pay for the forensic examination, which the Court noted in the November Order. Defendants submit, “Despite his earlier agreement, the Plaintiff now refuses to pay the amount invoiced, likely because the search was fruitless” [Id. at 2]. II. ANALYSIS The Court has considered the parties' arguments, and for the reasons set forth below, the Court DENIES WITHOUT PREJUDICE Plaintiff's Motion for Discovery Sanctions [Doc. 54] and Defendants' Motion to Enforce [Doc. 61] and DENIES AS MOOT Defendant's Motion for Extension of Time [Doc. 58]. As mentioned above, the pending matters before the undersigned relate to this Court's November Order directing the parties to complete the forensic examination by November 30, 2022. Plaintiff complains that Defendants, without any input from him, completed the forensic examination, alleging that such action was in contravention of the November Order. Plaintiff seeks various sanctions, and now, Defendants intend to seek sanctions. The Court contemplated that the parties would work collaboratively given Plaintiff's agreement to pay for the forensic examination and the fact that Defendants possessed the cellular phones. Defendants, however, had other plans in light of the short time to complete the forensic examination. With the instruction to complete the forensic examination by November 30, 2022, it was expected that the parties would work cooperatively to ensure that their respective obligations were honored in a timely manner without the necessity of the Court detailing every aspect of forensic examination process. *3 Given that Plaintiff was left out of this process, he questioned the trustworthiness of the forensic examination. After Plaintiff filed his motion for sanctions, Defendants filed a Notice of Compliance, stating that they submitted a declaration from the forensic examiner, detailing the search criteria utilized, and identifying any relevant messages identified [Doc. 56].[1] Despite this Notice of Compliance, it appears to the Court that the parties have not engaged in a meaningful and thorough meet and confer with regard to why Defendants chose the forensic examiner, the forensic examiner's qualifications and reputation, and the specifics on how the forensic examiner conducted the search. The Court will therefore order the parties to participate in such a meet and confer. Rule 1 of the Federal Rules of Civil Procedure state that the Rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. Instead of ordering another search, which will jeopardize the remaining deadlines in this case, the parties need to explore whether the forensic examiner's results are credible. The Court finds that a meet and confer, prior to filing motions requesting sanctions, is a better use of the Court's and the parties' time and resources. Until Plaintiff and this Court become aware of how the forensic examiner conducted this search, the Court cannot determine whether another forensic examination is necessary and therefore whether an extension to supplement the summary judgment filings is appropriate. Further, the parties dispute who should pay for the forensic examination. Plaintiff originally agreed to pay for the forensic examiner, but Defendants hired a forensic examination without receiving Plaintiff's approval, or at the least, consultation with Plaintiff. The parties need to discuss and make a good faith effort to resolve this issue as well. III. CONCLUSION For the reasons explained above, the Court DENIES WITHOUT PREJUDICE Plaintiff's Motion for Discovery Sanctions Pursuant to Rule 37 and For Additional Time to Comply with Court Order [Doc. 54] and Defendants' Motion to Enforce Plaintiff's Agreement to Pay for Forensic Evaluation [Doc. 61]. The Court further DENIES AS MOOT Defendants' Motion for Extension of Time [Doc. 58]. The parties SHALL participate in an in-person or video conference and engage in a meaningful meet and confer to discuss the forensic examiner, the specifics of how the forensic analysis of the phones was conducted, and who should pay what portion of the forensic examination costs. The parties SHALL file a joint status report on the results of their meet and confer on or before December 30, 2022. IT IS SO ORDERED. Footnotes [1] Plaintiff contemplated Defendants' Notice of Compliance as he states, “Even if such a report is provided, Plaintiff has no assurance as to its reliability and trustworthiness insofar as neither he nor his legal counsel have any knowledge or prior experience with the selected forensic contractor and had no say in the search criteria employed with regard to Plaintiff's own discovery” [Doc. 55 p. 8 n.1]. These issues can be thoroughly explored during the parties' meet and confer as explained above.