Kilpatrick v. Breg, Inc., 2009 WL 1764829 (S.D. Fla. June 22, 2009)
This case arose from plaintiff’s claim that defendant’s product caused plaintiff to develop a degenerative cartilage condition (chondrolysis), that defendant was aware of the risk of such a condition, and that defendant is therefore liable for plaintiff’s damages resulting from the condition. In the course of discovery, plaintiff became concerned that defendant’s production of electronic discovery was incomplete and filed a motion to compel. Acknowledging the validity of plaintiff’s concern but noting the unlikely possibility that any material new documents were located in defendant’s email archives or on disaster recovery tapes, the court concluded that plaintiff may, but was not required to, hire an outside vendor “for the purpose of confirming the completeness of [defendant’s] production, at is own expense” subject to specific conditions enumerated by the court.