Gopher Media LLC. v. Spain

Opinion

1 2 3 4 5 6 7 10 11 GOPHER MEDIA, LLC (formerly known Case No.: 3:19-cv-02280-CAB-KSC as Local Clicks) dba Doctor Multimedia, a 12 Nevada Limited Liability Corporation, ORDER ON JOINT MOTION RE: 13 CLARIFICATION AND/OR Plaintiff, ENFORCEMENT OF ESI ORDER; 14 v. ORDER OVERRULING 15 PLAINTIFF’S OBJECTION PHILLIP SPAIN, an individual;

16 STEPHEN MARINKOVICH, an [Doc. Nos. 70, 71] individual, 17 Defendants. 18

19 Before the Court is the parties’ Joint Motion and Motion Re: Clarification and/or 20 Enforcement of ESI Order; Parties’ Request for Sanctions (the “Joint Motion” or “Mot.”). 21 Doc. No. 70. As set forth in the Joint Motion, the parties seek the Court’s guidance as to 22 who should bear the cost of extraction of defendants’ ESI collected during the forensic 23 examination of certain of defendants’ electronic devices. The Joint Motion is accompanied 24 by the declaration of defendants’ counsel (the “Berger Declaration”), the declaration of 25 plaintiff’s counsel and nearly 300 pages of exhibits. See Doc. Nos. 70-1, 70-5. 26 On December 7, 2020, plaintiff filed an ex parte “Objection” to the Berger 27 Declaration and requested that the Court strike the Joint Motion in its entirety or, 28 alternatively, strike the Berger Declaration. See Doc. No. 74. The Court afforded 1 defendants an opportunity to respond to plaintiff’s objection, which they did. Doc. No. 77. 2 For the reasons that follow, the Court determines that pursuant to the parties’ 3 negotiated forensic examination protocol, plaintiff bears the cost of extracting defendants’ 4 ESI. Plaintiff’s Objection to the Joint Motion is overruled. 6 A. Forensic Examination of Defendants’ Electronic Devices 7 On February 4, 2020, the parties moved the Court to enter an order for the forensic 8 examination of Spain’s and Marinkovich’s cell phones, laptops, tablets, and other storage 9 devices. Doc. No. 14 at 2. The parties “agree[d] and stipulate[d] that, subject to a mutually 10 agreed protocol to preserve Defendants’ personal, private and privileged information on 11 such devices, Plaintiff may conduct a forensic examination at Plaintiff’s cost.” Id. The 12 Court entered the Order for the forensic examination as requested by the parties on 13 February 5, 2020. Doc. No. 16. The parties thereafter negotiated a “Joint Examination 14 Protocol for the Preservation and Forensic Examination of Certain Media and Data 15 Repositories” to govern the agreed-upon forensic examination (the “Protocol”).1 16 Among the “stated goals” of the Protocol were to preserve defendants’ electronic 17 devices and other digital storage that might contain relevant ESI and to protect the parties’ 18 confidential and proprietary information. Protocol at ¶2(a), (c). By its terms, the protocol 19 applied not only to the devices to be examined but to the ESI or “data” contained on those 20 devices. See, e.g., id. at ¶¶ 3 (defining scope of protocol to apply to digital media “that 21 contain or may have contained the ESI that is the subject of this Protocol”), 8 (requiring 22 forensic examiner to collect and store “image files contained on [defendants’] device[s]”), 23 11 (specifying chain of custody for “all imaged Digital Media and collected data”), 19 24

25 26 1 Attached to the Joint Motion are an unsigned, undated document titled “Joint Examination Protocol for the Preservation and Forensic Examination of Certain Media and Data Repositories,” which counsel 27 represents is the operative Protocol, and a signed, undated copy of the same document. See Doc. Nos. 70- 2, 70-6. Upon examination, the two documents appear identical apart from counsel’s signatures. Citations 28 1 (referring to counsel’s “review” of “ESI at any step of this Forensic Review”), 20 (referring 2 to plaintiff’s access to “files” responsive to search terms), and 26 (referring to “evidence 3 collected during this examination”). The parties agreed that the Protocol would govern 4 any examination of defendants’ devices, and neither the devices nor any ESI contained 5 therein would be destroyed except by a third-party forensic examiner. Id. at ¶¶5, 13. 6 As set forth in the Protocol, the forensic examiner (jointly selected by the parties) 7 would create mirror images of each of defendants’ devices, maintain all such images and 8 “collected data,” and return copies of the same to defendants’ counsel for review. Id. at 9 ¶¶4, 8, 11, 13, 18. At the parties’ request, the forensic examiner would also apply an 10 agreed-upon set of search terms to the ESI collected from defendants’ devices and prepare 11 a log of responsive documents. Id. at ¶¶15-16. This log, together with other reports to be 12 prepared by the forensic examiner, would be delivered to defendants. Id. at ¶16. The 13 Protocol explicitly states that some reports were not to contain “actual content” of files or 14 documents, while other reports were not so limited. Id. ¶17. 15 Within 30 days of receiving the “data” and “documentation” collected during the 16 forensic imaging process, defendants were to clear for release to plaintiff or its counsel any 17 relevant, nonprivileged ESI and provide a privilege and/or withhold log for any documents 18 or files not to be released within. Id. at ¶18. Per the parties’ agreement, plaintiff would 19 then have “immediate access” to the “files” that were captured by the parties’ search terms 20 and cleared for disclosure “as specified in th[e] Agreement.” Id. at ¶20. However, if 21 defendants failed to designate ESI responsive to the parties’ search terms for withholding 22 (as privileged or otherwise) within the agreed-upon 30-day period, plaintiff would 23 automatically gain access to those documents. Id. The Protocol also described procedures 24 for the return or destruction of any of plaintiff’s “proprietary” or “confidential” information 25 as collected from defendants’ devices during the forensic examination, and provided 26 safeguards against the inadvertent production of documents or other “collected data” under 27 the Protocol. Id. at ¶¶22-23, 27. 28 / / 1 B. The Parties’ Dispute Over Costs 2 Although the executed Protocol did not identify the parties’ forensic examiner, see 3 Protocol at ¶4, it appears from the Joint Motion that the parties selected Inventus to perform 4 the examination. Mot. at 2. It is undisputed that Inventus performed the forensic 5 examination, applied the search terms, and delivered the “hit logs” to defendants on 6 September 2, 2020. Id. at 2, 8. Inventus did not, however, provide defendants with access 7 to the actual documents collected from defendants’ devices so that defense counsel could 8 perform the necessary review for privilege, and Inventus refused to do so until defendants 9 paid for access to the documents through their platform. Id. at 3, 8-9. A dispute arose 10 between defendants and plaintiff as to whether the Protocol required defendants to pay for 11 access to review the documents so that they could timely prepare a privilege and/or 12 withhold log. Id. at 3. Inventus refused to give defendants access to the extracted ESI 13 which it was hosting on its servers unless it was paid in full for its services, at an estimated 14 cost of over $50,000. Id. at 3-4. Defendants refused to pay and requested that plaintiff pay 15 the cost of providing them access to the documents per the Protocol. Id. at 4, 9. While 16 Inventus appears to have agreed to extract documents onto their platform upon the approval 17 of counsel for plaintiff and for defendants, presumably for defense review, plaintiff’s 18 counsel did not provide its approval for the extraction on the Inventus platform. Id. at 3. 19 In order to proceed with a review of the pertinent documents, defendants instead 20 retained a separate vendor, Invendica, at their own expense, to store the responsive 21 documents until the parties could resolve their cost dispute.2 Id. at 3, 8-9. The parties met 22 and conferred throughout September and October, at times involving representatives from 23 Inventus and Invendica, to try to reach resolution. Id. at 3- 4, 9. On October 26, 2020, 24 plaintiff demanded that defendants produce a privilege log by the close of business. Id. at 25 4. Ultimately, defendants paid Inventus $3,400 to transfer images of the ESI to Invendica 26 27 2 Plaintiff objected to defendants’ retention of Invendica because the parties had agreed to use Inventus 28 and thus Invendica was “not authorized by the … [P]rotocol.” Id. at 3. 1 for defendants’ counsel’s review, and paid Invendica $12,660 to process and host the 2 documents for counsel’s review. Id. at 4-5. 4 A. Plaintiff Bears the Cost of Extracting Defendants’ ESI 5 The unambiguous terms of the Protocol require plaintiff to pay for everything within 6 its scope. See id. at ¶¶1 (“Plaintiff shall bear the full cost of this forensic examination”); 7 28 (“the cost of the extraction and retention of data will be paid by Plaintiff”). As explained 8 above, this includes extracting, processing and hosting the ESI contained on defendants’ 9 devices so that defendants could review it. The Court’s reading of the plain terms of the 10 Protocol is further bolstered by the fact that every effort defendants made to enable their 11 independent review of the documents was met with objections by plaintiff that defendants 12 were operating outside of the parties’ Protocol. See Mot. at 3-4. 13 Plaintiff is correct that “the responding party generally bears the expense of 14 complying with discovery requests.” Price v. Synapse Group, Inc., No. 16CV1524- 15 BAS(BLM), 2018 WL 9517276, at *10 (S.D. Cal. Sept. 12, 2018) (emphasis added); see 16 Mot. at 6 (“[n]ormally, a producing party bears their [sic] own costs of reviewing and 17 gathering documents”). But the parties here, through their experienced counsel, chose 18 instead to negotiate a detailed protocol for the collection, review and production of ESI 19 from defendants’ electronic devices. Notably, the Protocol affords plaintiff considerably 20 more control over that process than “normal” rules would allow. In exchange, plaintiff 21 agreed to absorb the costs of that process.3 Plaintiff cannot insist on rigid adherence to 22 some provisions of the Protocol, while at the same time advocating for the application of 23 “normal” rules when it comes to costs. The Court will hold plaintiff to its agreement. And, 24

25 3 Defendants have asked only for the Court’s guidance as which party bears the cost of extracting the ESI 26 from defendants’ devices and making it available for defendants’ review under the Protocol. Mot. at 5. 27 But, for the avoidance of doubt, the Court finds that the Protocol does not require plaintiff to reimburse defendants’ counsel for their time spent reviewing the documents or compiling their privilege logs. Mot. 28 at 6. 1 as plaintiff explicitly agreed to bear the cost of the forensic examination of defendants’ 2 devices, without any stated exceptions, the Court does not find it necessary to engage in a 3 cost-shifting analysis. 4 The Court is also unpersuaded by plaintiff’s argument that if defendants “honestly 5 believed” the Protocol required plaintiff to pay for defendants’ access to the documents, 6 defendants “should have refused to pay.” Mot. at 10. Defendants did just that. Id. at 9. 7 In response, the forensic examiner essentially held defendants’ documents hostage with 8 plaintiff’s acquiescence, while plaintiff demanded that defendants deliver the withhold log 9 required by the Protocol under threat that defendants’ privilege and privacy objections 10 would be waived if no withhold log was forthcoming. Id. at 3-4, 9. The Court finds that 11 defendants’ decision to pay both vendors so that it could complete its review of the 12 documents while the parties sought the Court’s guidance was reasonable under the 13 circumstances. 14 Finally, the Court does not agree that defendants “had chance after chance to bring 15 this issue to the Court since January 2020.” Id. at 10. For the reasons explained herein, 16 defendants’ understanding that the Protocol required plaintiff to bear the disputed costs 17 was both reasonable and correct, and defendants had no cause to request clarification from 18 the Court until the parties’ dispute arose. The Court finds the instant Motion timely. 19 B. Plaintiff’s “Objection” to the Joint Motion Is Overruled 20 This Court’s Chambers’ Rules require parties to bring discovery disputes to the 21 Court in the form of a joint motion. See Chambers’ Rules and Civil Pretrial Procedures for 22 the Honorable Karen S. Crawford (“Chambers’ Rules”), § VIII.E. The Court hopes that 23 by engaging in the joint motion process, the parties may identify additional areas for 24 compromise, and, if not, will present a streamlined brief that articulates the dispute and the 25 parties’ positions “in a clearly organized and succinct format.” Id. 26 Unfortunately, that did not happen here. Indeed, the joint motion procedure itself 27 became a point of contention between the parties as they quibbled over not only the 28 contents of the briefing but the mechanics of filing it. Plaintiff’s counsel, who insisted that 1 the parties had until midnight to finalize and file the Joint Motion, complains that 2 defendants’ counsel did not provide them with his two-page declaration for inclusion with 3 the Joint Motion until 10:10 p.m. Doc. No. 71 at 2. On that basis, plaintiff “objects” to the 4 Joint Motion and requests that the entire Joint Motion be stricken, or alternatively, that the 5 Court ignore the Berger Declaration. Id. at 3-4. 6 Plaintiff’s objection is overruled. If counsel choose to wait until midnight to file 7 documents, they can expect that drafts, declarations and exhibits will be exchanged late at 8 night. 4 Regardless, the Court has not relied on the Berger Declaration or any information 9 related therein in resolving the issue presented in the Joint Motion. Indeed, despite the 10 nearly 300 pages of exhibits attached the Joint Motion, the Court needed only 11 of them 11 – the Protocol itself – to address the parties’ dispute. Plaintiff’s objection is therefore moot. 12 However, the Court takes this opportunity to express, again, its concern over counsel’s 13 inability to conduct themselves with the courtesy and professionalism expected by the 14 Court. See Civ. LR 2.1; Chambers’ Rules § I. This lack of cooperation has resulted in 15 significant motion practice, caused needless delays, and consumed the Court’s time and 16 resources. The parties and their counsel are again encouraged to earnestly meet and confer 17 to resolve their disputes going forward, and to seek the Court’s intervention only when 18 necessary. 19 / / 20 / / 21 / / 22 / / 23 / / 24 / / 25 / / 26

27 4 While the parties are free to work beyond 5:00 P.M., the Court sees no reason why joint motions cannot 28 2 For the foregoing reasons, the Court finds plaintiff is responsible for the cost of 3 extracting the ESI from defendants’ devices and making that ESI available for defendants 4 ||to review. Within 10 days of the date of this Order, plaintiff shall reimburse defendants 5 || and/or their counsel for their expenditures incurred in collecting and reviewing the ESI 6 defendants’ devices, in the sum of $16,060.00 8 ||Dated: January 8, 2021 te ae ) 9 Mfficae —= 10 Hort. Karen S. Crawford United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28