In Wegman v. U.S. Specialty Sports Ass’n, Inc., No. 6:23-cv-1637-RBD-RMN (M.D. Fla. Feb. 15, 2024), Florida Magistrate Judge Robert M. Norway directed defendant USSSA and defendant Donald DeDonatis, III to use one of three independent eDiscovery vendors selected by the Court to collect ESI from an iPhone that DeDonatis had used when working for USSSA.
Case Background and Judge’s Ruling
In a previous ruling, Judge Norway had ordered DeDonatis to turn over three electronic devices to defendant USSSA without copying any information from those devices. Though the devices were returned to USSSA in December, the dispute continued into the new year. On January 16, USSSA filed another discovery motion seeking relief against DeDonatis. There, USSSA informed the Court that it had been unable to access the documents, data, and information on the devices due to DeDonatis’ failure to provide necessary login information or passcodes. The Court denied motion USSSA’s motion to compel the information because USSSA did not appear to have propounded any formal discovery requests on DeDonatis seeking the information needed to access the devices.
The dispute did not end there. As directed, USSSA propounded several interrogatories seeking the information needed to access the devices. DeDonatis answered some interrogatories directed to an iPhone used by his spouse and the laptop, and responded to other interrogatories by an objection that answering would violate his right against self-incrimination under the Fifth Amendment of the United States Constitution.
After hearing testimony, the Court found that the devices were provided to DeDonatis for his use as CEO of USSSA. The Court further determined that DeDonatis does not have a personal interest in the devices or the ESI on those devices. He possessed and used those devices in his capacity as an officer of USSSA, and the ESI on those devices were USSSA’s business records.
As a result, the Court held that DeDonatis could not, as a custodian of USSSA’s business records, invoke his personal Fifth Amendment privilege to prevent the collection and production of the ESI on the devices. The Court also rejected DeDonatis’ argument that the act of providing the information needed to access the devices would be testimonial and therefore privileged under the Fifth Amendment. And at least as to the iPhone he used and the laptop (but not the iPhone used by DeDonatis’ wife), the Court found that providing the information needed to access the devices would not be testimonial because USSSA could demonstrate through other means that DeDonatis possessed the devices, used the devices, knows the information needed to access the devices, and knows the types of ESI on the devices. The Court therefore determined that the foregone conclusion doctrine applied and that granting the motion as to the laptop and one iPhone would not violate the Fifth Amendment.
In granting the motion, the Court provided three ways in which DeDonatis could comply. He could (1) answer the interrogatories, (2) provide the necessary information to USSSA’s eDiscovery vendor, or (3) provide the necessary information to another eDiscovery vendor. After continued dispute, DeDonatis notified the Court that he complied with the Court’s order by providing testimony about the information needed to access the laptop. Judge Norway stated: “Having provided such testimony freely, voluntarily, knowingly, and with the advice of counsel, DeDonatis has therefore waived any objection he may have had to testifying about the information needed to collect, preserve, and produce all of the ESI on the laptop.”
With regard to his iPhone, DeDonatis informed the Court that he intended to comply using the third option, cooperating with an independent eDiscovery vendor. After USSSA notified the Court that the parties could not agree on an acceptable vendor by the deadline, Judge Norway stated: “Based on the email exchange provided in that filing and an additional (unauthorized) notice filed by DeDonatis, it appears that the single vendor proposed by DeDonatis lacks the experience or technical expertise that USSSA believes is necessary and that the vendors proposed by USSSA do not satisfy the Court’s requirement that the vendor not have a prior or current relationship with any of the parties or counsel.”
So, Judge Norway ruled as follows: “In view of the parties’ impasse, the Court finds good cause to amend its prior order. The order is amended only to remove the requirement that the independent eDiscovery vendor have no prior or current relationships with the parties or their counsel. The Court also finds good cause to direct the parties to use a particular vendor.” So, Judge Norway directed the parties to use one of three independent eDiscovery vendors he identified in the order, stating: “If any of the vendors can provide the services needed and is willing to perform the work, then the parties shall use that vendor, with all costs borne by DeDonatis.”
So, what do you think? Have you ever seen a case where the Court ordered the parties to use specific eDiscovery vendors selected by the Court? Please share any comments you might have or if you’d like to know more about a particular topic.
Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.
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