In Wynmoor Community Council, Inc. v. QBE Insurance Corporation [pdf], No. 10-62411 (S.D. Fla. Mar. 5, 2012), U.S. Magistrate Judge Lurana S. Snow granted the defendant’s motion to compel electronic discovery and ordered the plaintiffs to submit to a court-ordered forensic inspection of its electronic information systems at the defendant’s cost.

The plaintiffs alleged breach of an insurance policy.  The defendant served discovery requesting relevant electronically stored information (ESI).  The plaintiffs failed to timely object, and instead requested more time to produce ESI.  When the plaintiffs failed to produce ESI, the defendant moved to compel and further sought a court-ordered forensic inspection in light of deposition testimony from the plaintiffs’ employees indicating that potentially relevant documents and ESI were routinely destroyed.

The court ruled that the plaintiffs’ untimely response to the document request waived their burden and expense objections.  However, the court noted that on the merits the plaintiffs’ failed to meet their burden and that their argument was unsupported by the evidence, particularly given that the plaintiffs’ information technology manager testified in deposition that he had not halted the automatic or routine destruction of ESI in anticipation of litigation. In granting the motion to compel, the court indicated that it would appoint an independent computer expert to mirror image the plaintiffs’ computer system and give the defendant an opportunity to draft search terms.  The search terms would be applied to the plaintiffs’ ESI and the plaintiffs would be given time to review and produce responsive documents and a privilege log.  The court ordered the defendant to bear the cost of the expert, but cautioned that cost-shifting would be revisited if there is evidence of the plaintiffs’ improper deletion of ESI or any other associated misconduct.