COURT-APPOINTED FORENSIC EXPERT TO EXPLORE SPOLIATION IN COMPLEX ESI CASE

Florida Federal Court Orders Deposition of Neutral, Court-Appointed Forensic Expert to Explore Spoliation in Complex ESI Case.

Overview: In this $350 million antitrust case, because the ESI issues were complex, the District Judge in the Southern District of Florida appointed a neutral computer forensic expert to analyze the Colombia-based corporate plaintiff’s ESI, along with a Special Master to assist the court with the ESI disputes. The plaintiff had failed to implement a litigation hold until ordered to do by the court, and the forensic expert found deleted files that possibly gave rise to a spoliation issue. Over the plaintiff’s objection that the defendant was trying to use the deposition of the neutral expert as a strategic tool to build a claim of spoliation, the court granted the defendant’s motion to depose the court-appointed expert (and quoted the Beatles for its reasons why). Procaps S.A. v. Patheon Inc., No. 12-24356-CIV, 2015 WL 1880346 (S.D. Fla. Apr. 24, 2015).

Summary: The court noted that depositions of court-appointed experts are permissible under Fed. R. Civ. P. 706(b)(2) and granted the motion on several grounds, including:

1. the deposition would be taken, in part, by the Special Master,

2. the deposition would assist the Court to evaluate the ESI issues arising from the deleted files

3. the deposition might actually provide information helpful to the plaintiff, and…

4. depending on what occurs at the deposition, it might cause the defendant to not file the spoliation motion.

Most importantly to the court – important enough to quote the Beatles – the expert and Special Master were helpful in explaining complicated ESI issues to the court: the judge hoped to “’get by with a little help from my [ESI neutral expert] friends’” and is “’gonna try [to comprehensively and correctly assess the to-be-submitted ESI issues] with a little help from my friends.’” Procaps, 2015 WL 1880346, at *7

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