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Court Denies Defendant’s Motion to Compel Plaintiff to Produce Additional ESI, Stating Plaintiff Has Sufficiently Complied

Posted on May 7th, 2018

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In Apex Colors, Inc. v. Chemworld International Limited, Inc., No. 2:14-cv-273-PRC, (Dist. Court ND Indiana, 2018) the Defendant, Chemworld International Limited, Inc., (“Defendant”) asked the Court to compel the Apex Colors, Inc., (“Plaintiff”) to produce a hard-drive. The Court said no.

Finos LLC’s members were Apex Colors, Inc. and Jim and Eric Boggess. In October 2012, Finos LLC was dissolved. The terms of the settlement agreement provided that the documents and data in the physical possession of Boggess became their property. The Boggesses moved at least some of the property to their business location in Kentucky. The item in dispute on the instant motion is the Finos Computer, which was in the possession of the Boggesses at the time of the dissolution and became the Boggesses’ property.

During discovery, Apex learned that the Finos computer was in the possession of the Boggesses, who are not parties to this litigation. Apex asked for full access to the entire Finos computer. In August, the Boggesses confirmed that they were able to get the computer running, and that a third-party vendor One Source would image the computer. The Boggesses had One Source run a date filter and provide all documents and files dated prior to October 31, 2012, the approximate date that the Finos computer was moved to the Boggesses’ facility in Kentucky. Apex agreed with the plan. In October, Apex informed Defendants that the imaging was done.

The next contact by Defendants regarding the Finos computer occurred on February 12, 2018, when counsel for Defendants sent an email to counsel for Apex asking for the entire forensic image of the Finos computer. Apex objected that Defendants had no basis for asserting a right to more materials than what Apex already received.

In the instant motion, Defendants ask the Court to compel Apex to produce to Defendants the full forensic image of the Finos computer hard drive. Defendants argue that the full forensic image of the Finos computer is necessary to respond to the discovery requests. Federal Rule of Civil Procedure 34 provides that a party may be compelled to produce ESI in the responding party’s control. The burden is on the party seeking discovery to show that the nonmovant has control over the documents sought.

Here, the Defendants believe that there is something more on the full forensic image of the Finos computer that is relevant to this litigation. However, Defendants have not argued why they are entitled to information dated after October 31, 2012. Second, Defendants have been given all of the documents from the Finos computer. Apex was not given a full forensic image of the Finos computer hard drive. Thus, Apex has fulfilled its obligation under Rule 34. Third, Defendants have not met the burden of showing that Plaintiffs control the information or data related to the Finos computer.

The Court hereby denies the Motion to Compel Supplemental Production of documents and orders Defendants to pay Plaintiff’s reasonable expenses incurred.

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