In ZAGG Inc. v. Ichilevici, No. 1:23-cv-20304-ALTMAN/REID (S.D. Fla. Jan. 30, 2024), Florida Magistrate Judge Lisette M. Reid, stating “an attorney has a duty and obligation to have knowledge of, supervise, or counsel the client’s discovery search, collection, and production”, expressed concern regarding defendant’s unsupervised self-collection and ordered defendant DVG’s counsel “to review DVG and Mr. Ichilevici’s records and produce any documents responsive to ZAGG’s discovery requests”.

Case Discussion and Judge’s Ruling

In this trademark infringement action, the plaintiff sought an order (1) compelling DVG to produce additional financial documents associated with the sale of its products and a witness prepared to discuss same; (2) compelling DVG’s counsel (rather than defendant Menachem Mendel Ichilevici) to search his e-mails, cell phone, and Amazon portal and produce all responsive documents; (3) granting leave to subpoena and depose a newly disclosed logistics vendor; and (4) awarding fees and costs for its preparation of the Motion and the relief sought therein.

Regarding the plaintiff’s first request, Judge Reid stated: “ZAGG argues that Mr. Ichilevici was entirely unprepared for the deposition…The Court disagrees. Mr. Ichilevici was deposed for over four hours and spent 20–30 hours preparing for the deposition…He explained key details associated with the financial documents, including the source of the sales data and the method of calculating the net profit…Simply stating that he ‘would have to look’ into certain topics does not ‘indicate a complete lack of preparation’ as ZAGG argues.”

In denying the first request, Judge Reid added: “For the same reasons, ZAGG’s complaint of deficiencies in the spreadsheet—which details sales information for the relevant period—fails. ZAGG believes the spreadsheet ‘contained no dates and no information that, on its face, would allow a person to understand what was being shown in the document.’…But ZAGG’s attorney had ample opportunity to question Mr. Ichilevici. Indeed, Mr. Ichilevici answered several questions on this issue, providing insight on the extraction process of the seller data as well as an overview of relevant columns of the spreadsheet…To the extent the data is outdated, Mr. Ichilevici’s declaration states that he is willing to provide updated sales information containing sales made after the summary was produced.”

As for the plaintiff’s second request, Judge Reid stated: “{Ichilevici} testified that he did not provide his attorneys access to the Amazon Seller Central account and signaled uncertainty as to the terms used to search for responsive documents…In his declaration, he admits that he searched for responsive documents under the guidance of his lawyers…Further, Mr. Ichilevici confirmed that business with vendors is done in-person, over the phone, and via text message…However, no text messages (or a log containing details regarding these text messages) were produced…ZAGG also points to responsive e-mails between DVG and Amazon associated with publicly available reviews, which it argues were also never produced.”

Judge Reid added regarding unsupervised self-collection: “The relevant rules and case law establish that an attorney has a duty and obligation to have knowledge of, supervise, or counsel the client’s discovery search, collection, and production. It is clear to the Court that an attorney cannot abandon his professional and ethical duties imposed by the applicable rules and case law and permit an interested party or person to ‘self-collect’ discovery without any attorney advice, supervision, or knowledge of the process utilized.”

In granting the plaintiff request, Judge Reid stated: “Clearly, counsel for DVG should have supervised its clients in the collection of ESI. Mr. Ichilevici is both an individual defendant and the representative of DVG, bolstering the need for a thorough document search by DVG’s counsel. As such, DVG’s counsel is ordered to review DVG and Mr. Ichilevici’s records and produce any documents responsive to ZAGG’s discovery requests, which were made prior to the close of discovery. Should counsel for DVG discover any non-produced responsive documents, the parties are directed to confer and set a reasonable timeline for that production.”

Judge Reid also granted the plaintiff leave to issue a subpoena for a logistics vendor that was newly disclosed by Ichilevici at his deposition, and reserved ruling on the plaintiff’s attorneys’ fees and costs “until all discovery is complete.”

So, what do you think? Is there any case in which unsupervised self-collection is warranted? 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. See what Kelly Twigger has to say about the case here!

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