MEMORANDUM AND ORDER RE: EMERGENCY MOTION TO REOPEN DISCOVERY AND FOR THE ENTRY OF AN ORDER COMPELLING JOHN DOE 16 TO PERMIT PLAINTIFF ENTRY INTO JOHN DOE 16'S HOME FOR THE LIMITED PURPOSE OF MAKING FORENSIC COPIES OF JOHN DOE 16'S HARD DRIVES
MICHAEL M. BAYLSON, District Judge.
Plaintiff, Malibu Media, LLC, is a producer of adult pornographic movies and alleges that the defendants have used certain software to download its movies and play them, in violation of the copyright laws. The case is on an expedited pretrial schedule leading up to a bellwether trial scheduled to start on June 10, 2013. Prior memoranda dated October 3, 2012 (ECF 21) and March 6, 2013, (ECF 117) will give a fuller background to this case.
On May 2, 2013, plaintiff filed an "Emergency Motion to Reopen Discovery and for the Entry of a Order Compelling John Doe 16 to Permit Plaintiff Entry to Joe Doe 16's Home for the Limited Purpose of Making Forensic Copies of John Doe 16's Hard Drives" (ECF 125). The Court received a response from counsel for John Doe 16 ("defendant") (ECF 128) and held recorded telephone conferences with counsel on May 3, and May 6, 2013.
The basis of the Motion, according to plaintiff, is that during discovery, defendant had produced a hard drive from defendant's computer to the plaintiff, which plaintiff alleges is unreadable. Plaintiff asserts that it needs to gain further access to the computer of defendant to determine the contents of the hard drive.
As a result of the defendant's response and the Court's inquiry during the May 3, 2013 telephone conference, the following chronology appears to be relevant to this dispute:
1. In late December, 2012, plaintiff requested hard drives from defendant, who has three computers. According to his attorneys' representations, defendant prepared a "composite" copy of the hard drives of all three computers which was then produced to plaintiff's counsel in early January, 2013.
2. Plaintiff's attorney asserts that plaintiff was searching for an appropriate expert and did not retain one until sometime in February, 2013, and the hard drive copy that had been received from defendant was forwarded to plaintiff's retained expert during the third week of February, 2013. Plaintiff had selected as an expert a firm called Computer Forensic LLC located in Boynton Beach, Florida, and specifically David Kleiman.
3. The Court is unaware of specific discussions between plaintiff or plaintiff's counsel and Kleiman from the third week in February until April, 2013. Kleiman died on April 26, 2013, which represented some difficulties for plaintiff because plaintiff's expert report was due to be served on defendant as of April 26, 2013, according to the Court's Scheduling Order. Plaintiff first became aware of David Kleiman's illness on April 18, 2013, and then met with Kleiman's associate at the same firm, Patrick Paige.
4. Plaintiff asserts that Patrick Paige had garnered enough information from David Kleiman and has taken over as plaintiff's expert in this case.
5. The Court has received a copy of the Computer Forensics "examination report" which consists of seven pages signed by Patrick Paige with a conclusion that includes accurate identification of an IP address used to distribute data. A one page attachment asserts the hard drive received from defendant is not readable.
6. Plaintiff's Motion asserts that plaintiff did not learn that the hard drive received from defendant was unreadable until April 30, 2013. Plaintiff's attorney did not explain why this information was not conveyed to him from either Kleiman or Paige at an earlier time.
7. Plaintiff, in its Emergency Motion, asserts that he needs to have access to the three hard drives immediately to prepare for trial. Plaintiff is prepared to pay a forensic computer firm to review them to see if the three hard drives can be read. Plaintiff is willing to perform all of this at its own expense.
8. Defendant asserted that this is coming much too late, as he is getting ready for trial, and any kind of home intrusion would be unfair and violate defendant's right to privacy.
9. In the May 3, 2013 telephone conference, the Court raised the issue that assuming the Court did not give plaintiff access to the hard drives at this time, whether defendant had any intention of using his hard drives as part of his evidence in his defense. Although his counsel did not during the phone conference explicitly respond as to evidentiary intent, the Court believes that this is an important issue. Just as with any other document or piece of evidence, pretrial ...