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Enterprise Fleet Management, Inc. v. Guinn

United States District Court, E.D. Missouri, Eastern Division

May 3, 2018

ENTERPRISE FLEET MANAGEMENT, INC., Plaintiff,
v.
WALTER BRYAN GUINN, Defendant.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the cross motions (ECF Nos. 31 & 53) of non-party Mike Albert Leasing, Inc. d/b/a Mike Albert Fleet Solutions (“MAFS”) and Plaintiff Enterprise Fleet Management, Inc. (“Enterprise”) for orders related to a discovery dispute. For the reasons set forth below, both motions will be granted in part and denied in part.

         BACKGROUND

         This action arises out of a dispute between Enterprise and its former employee, Defendant Walter Bryan Guinn, regarding Guinn's alleged violation of a non-solicitation and non-disclosure agreement with Enterprise, and misappropriation of Enterprise's trade secrets. Enterprise alleged that, shortly before and after resigning from his position as an account executive at Enterprise, Guinn improperly accessed and emailed to his personal email address confidential, competitively valuable, and trade secret information of Enterprise, and that Guinn thereafter joined MAFS, Enterprise's direct competitor, in a position in which he could make use of Enterprise's confidential information to the detriment of Enterprise. The Court granted in part Enterprise's motion for a temporary restraining order (“TRO”) on February 15, 2018, and set a preliminary injunction hearing for March 1, 2018. The parties thereafter agreed to continue the hearing and to extend the date of the TRO.

         On February 17, 2018, Enterprise issued subpoenas to MAFS for documents and for a corporation deposition to take place on March 27, 2018. Enterprise and Guinn also jointly proposed, and the Court accepted, a schedule for expedited discovery for the preliminary injunction hearing, which required production of Guinn's “digital devices” for inspection and copying to a forensic examiner of the parties' choosing by February 20, 2018. Among the digital devices Guinn produced to the forensic examiner on February 20 was a Microsoft Surface Pro Tablet (“Surface”) owned by MAFS that Guinn used as an MAFS employee.

         On February 28, 2018, MAFS entered an appearance and filed the current motion for a protective order compelling the return of the Surface. MAFS states that it did not know about or consent to Guinn's production of the Surface, and that the Surface contains confidential, proprietary, and trade secret information of MAFS. In their current motions, MAFS and Enterprise agree that MAFS terminated Guinn's employment on February 27, 2018, and that the third-party forensic examiner returned the Surface to MAFS's counsel on February 28, 2018, but the forensic examiner retained a searchable electronic image of the Surface's contents (“Surface Image”). The MAFS deposition originally scheduled for March 27, 2018, was either canceled or postponed (the parties dispute which) while MAFS and Enterprise attempted to resolve their discovery dispute. Additionally, at the joint request of Enterprise and Guinn, who represented that they needed additional time to discuss the terms of a potential settlement of this case, the Court continued the preliminary injunction hearing three times, most recently until May 25, 2018. Pursuant to their agreement, Enterprise, MAFS, and the forensic examiner have not accessed or searched the Surface and Surface Image while the current motions have been pending.

         ARGUMENTS OF THE PARTIES

         MAFS contends that, while it did not consent to the production of the Surface by Guinn or the creation of the Surface Image, “[i]n the interest of terminating the need for [its] continued participation in this litigation, ” it performed its own search of its “technology infrastructure, ” including (1) its file share network, (2) all emails that existed in Guinn's Microsoft Outlook Exchange mailbox at MAFS, and (3) all lead, account, or contact records created by Guinn in MAFS's “SalesForce” system, to determine whether Enterprise's information existed on MAFS's systems. The search did not include the Surface or Surface Image. MAFS performed this search after filing its motion for a protective order, and in connection with its attempts to settle with Enterprise all issues raised in its motion.

         MAFS states that it utilized a search protocol agreed to by Enterprise. MAFS contends that because the search protocol included overbroad search terms at Enterprise's insistence, approximately 86% of the search results were documents that were irrelevant to Enterprise's lawsuit and that many of these irrelevant documents in fact contained MAFS's confidential information.

         Nevertheless, MAFS did identify certain documents on its system derived from Enterprise by Guinn, and MAFS returned these documents to Enterprise. MAFS also suggested to Enterprise that MAFS could destroy all copies of documents identified as obtained from Enterprise so that no Enterprise document would remain on MAFS's system. MAFS states that it “further investigated with its employees whether Guinn had shared any Enterprise ESI with individuals employed by [MAFS] in the position of sales representative.” ECF No. 49 at 3. Based upon these searches and inquiries, MAFS confirmed by affidavit to Enterprise dated March 15, 2018, that it had no knowledge or information indicating that Guinn shared any Enterprise ESI on MAFS's technology infrastructure. MAFS maintains that it expended considerable efforts and more than $40, 000 in costs and attorney's fees to conduct these searches.

         MAFS argues that Enterprise's demand for a search of the Surface Image by the forensic examiner is duplicative and unduly burdensome. MAFS maintains that, based on its correspondence with Guinn's counsel and based on Enterprise's repeated motions to continue the preliminary injunction hearing, it appears that Enterprise has likely settled its claims with Guinn such that there is no need for Enterprise to pursue further discovery from MAFS. MAFS asks that the Surface Image be destroyed and that MAFS be permitted to permanently delete all information on the Surface itself. MAFS also asks for an award of attorneys' fees incurred in filing its reply brief, as MAFS contends that Enterprise should have withdrawn its opposition to MAFS's motion after MAFS conducted the searches described above and produced all relevant documents to Enterprise.

         Enterprise has filed a cross motion for a protective order to prohibit MAFS from deleting any ESI relevant to this litigation, to compel MAFS to participate in a deposition, and to compel a search of the Surface Image. In its briefs in support of its motion and in opposition to MAFS's motion, Enterprise argues that it has not settled its claims with Guinn, and that any settlement is contingent upon completing discovery with MAFS because Enterprise must confirm that MAFS is no longer in possession of Enterprise's confidential information.

         Enterprise contends that counsel for Enterprise and MAFS reached an agreement regarding a search protocol for the data set discussed above that MAFS's counsel had collected from its technology infrastructure (“Document Set”), as well as a separate search protocol for the Surface Image. According to Enterprise, the agreement was that MAFS's counsel would search the Document Set using a short list of search terms (less than 100) based primarily on the titles and subject lines of the confidential information Guinn emailed himself shortly before and after his resignation. Then, the forensic examiner would search the Surface Image with a longer list of search terms (more than 600) that Enterprise shared on an Attorneys' Eyes Only (“AEO”) basis because it included the identities of Enterprise's current and prospective clients. MAFS's counsel would have three days to object to any search terms on the AEO list, and the forensic examiner would search the Surface Image and produce a list of responsive documents to MAFS's counsel for its review to ensure that MAFS's confidential information would not be produced to Enterprise.

         Enterprise argues that MAFS chose not to comply with the agreed protocol and instead searched the Document Set using the longer AEO list designed for the Surface Image, and is now objecting to any search of the Surface Image. Enterprise contends that a search of the Surface Image would not be duplicative of the search MAFS has already conducted because, for example, Guinn may have used the Surface to access his personal email address and downloaded Enterprise's confidential ...


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