Court Allows Deposition of Court-Appointed Forensic Expert, Cites Benefit to the Court, Orders Special Master to Participate in Questioning

Procaps S.A. v. Patheon, Inc., No. 12-24356-CIV, 2015 WL 1880346 (S.D. Fla. Apr. 24, 2015)

In this opinion, the court addressed Defendant’s motion to take the deposition of the court-appointed, neutral, computer forensic expert who conducted a forensic analysis of Plaintiff’s electronic media and discovered a number of deletions. Plaintiff and Defendant differed regarding the meaning of the expert’s report and filed competing summaries. Accordingly, Defendant sought to conduct a deposition of the expert. The court granted the motion, noting the importance of the deposition in assisting the court to understand the issues before it and ordered a specific deposition protocol, including that the Special Master conduct a portion of the questioning.

Previously in this case, the court ordered a forensic examination of Plaintiff’s “electronic media” in light of Plaintiff’s failure to timely issue a litigation hold and inadequate search for responsive information.  (See the summary of that opinion, here.)  The neutral examiner’s report indicated that many files were deleted, including approximately 5,700 which contained search terms in their titles, indicating possible responsiveness.  The parties disagreed on the meaning of the report, however, and each filed their own summary.

Defendant sought to take the deposition of the forensic examiner arguing that it would help to “get to the bottom” of Plaintiff’s failure to preserve and assist the defendant in explaining the destruction to the court and possibly the jury.  Plaintiff opposed the motion on several procedural grounds and argued that there was “no reasonable justification” to compel the deposition.  More specifically, Plaintiff challenged Defendant’s assertion that it is “very common” for parties to depose a court-appointed forensic expert and argued that Defendant should not be allowed to make the court-appointed expert into its own in support of its accusations of spoliation against the plaintiff.

The court began its analysis with the observation that it was “apparent” that Defendant would either file a motion seeking spoliation sanctions or seek to introduce evidence of spoliation at trial and that the court would therefore “be compelled to once again plunge into the thicket of details surrounding [Plaintiff’s] ESI” a task it characterized as “daunting” without assistance.  In support of its assessment, the court cited, among other things, the length of the report and the fact that the “nitty-gritty assessment about the forensic analysis” had been “handled by the Special Master.”  The court also cited the fact-intensive nature of the spoliation analysis, reasoning that the expert, not the court, was in a position to explain whether a finding of bad faith could be supported by the report or the surrounding circumstances.

The court went on to explain that it did not view the deposition “as merely a strategic tool designed to help only [Defendant] pursue its strategy,” but rather that the deposition would benefit the court and parties and could possibly even cause Defendant not to file a sanctions motion.  The court further explained:

As previously noted, the Undersigned does not consider the proposed Setec deposition to be a standard deposition taken by one party for strategic purposes. Setec is a neutral, court-appointed expert, which places the proposed deposition in a different category. Moreover, as also explained above, the deposition would undoubtedly be of great help to the Court. If I were to deny the motion, as Procaps urges, then I would be undermining my own ability to grapple with the myriad, thorny issues which will surely arise in the next several weeks or months.

Thus, rejecting Plaintiff’s procedural arguments and repeatedly noting that the requested deposition would be of great benefit to the court, the court ordered the deposition to proceed pursuant to its identified protocol.

Introducing the deposition protocol, the court reiterated that it “view[ed] the deposition as a method to help not only the parties but also the Court to better understand the ESI issues” and concluded that “[i]nvolving  the Special Master [would] increase the benefit to the Court.”  Accordingly, the court’s protocol indicated, among other things, that the deposition would last 5 hours, with the Special Master allotted 2.5 hours to question the witness and each party allotted 1.25.

A full copy of the court’s order is available here.

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