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Court Denies Forensic Examination Request in E-Discovery Dispute

Why This Alert Is Important

This case is crucial for legal professionals involved in e-discovery because it highlights the court's stance on spoliation sanctions and the conditions under which forensic examination of electronic devices is deemed unnecessary.


In EmCyte Corp. v. XLMedica, Inc., (M.D. Fla. Mar. 28, 2024), U.S. Magistrate Judge Nicholas P. Mizell addressed issues concerning the production of limited-access files and the conditions for a forensic examination under Rule 37(e). This action involved a dispute over trademark rights related to EmCyte's blood-concentrating systems. 

Plaintiff EmCyte alleged that Defendants, former EmCyte employee Anna Stahl and her company XLMedica, committed trademark infringement. Defendants countered, alleging tortious interference by EmCyte. 

Previously, the court found Plaintiff entitled to $11,329 in fees due to Defendants' improper document production. Defendants had provided a limited-access version of a QuickBooks file, defying multiple court orders to produce a full-access version. Plaintiff moved for additional sanctions and a forensic examination of Defendants’ devices, claiming spoliation of electronically stored information (ESI). 

Ruling Summary

  • Defendants’ Motion for Partial Reconsideration Denied: Judge Mizell emphasized that court orders were clear in directing Defendants to produce a full-access QuickBooks dataset, rejecting the limited-access version. Sanctions were justified as Defendants knowingly defied court orders by producing the limited-access version. The court denied Defendants’ motion for partial reconsideration and ordered defense counsel to pay $1,600 to Plaintiff as an expense-of-motion award. 
  • Request for Forensic Examination: The Plaintiff based their argument requesting a forensic examination on a small number of recovered emails, speculating that "other responsive ESI may have been lost." The court explained that forensic examination is a drastic remedy and should only be ordered if there is evidence of spoliation. He cited the 2015 amendments to Federal Rule of Civil Procedure (FRCP) 37(e), noting that, in situations where there is no intent to deprive opponents of relevant information, courts must consider whether any alternative remedies would cure prejudice suffered by the innocent party. 
  • Additional Sanctions for Spoliation Unnecessary: The court found insufficient evidence of intentional destruction or alteration of data by Defendants. He noted that "perfection in preserving all relevant [ESI] is often impossible" and that Plaintiff had “not shown that relevant ESI was lost or is unrecoverable due to the defendants’ failure to take reasonable steps to preserve it." 

This decision is another recent example of courts’ hesitation to order forensic examinations. It has proven to be very difficult to provide evidence of information that no longer exists, and courts are not likely to order forensic examinations based on mere speculation. There must be some type of misconduct or actual evidence of destruction, which can be hard to find especially if missing emails can be located from other individuals involved in the communications.

Patricia Antezana, Counsel, Reed Smith

Case Law Tip

Avoid discovery missteps, mishaps, and mistakes that can potentially lead to sanctions by familiarizing yourself with the recent e-discovery sanction cases. Download the Exterro whitepaper Don’t Get Sanctioned Like These Parties

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