Besman v. Stafford

[Cite as Besman v. Stafford, 2021-Ohio-3927.]
COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

SHERRI H. BESMAN, :

Plaintiff-Appellee, :
No. 110256
v. :

JOSEPH G. STAFFORD, ET AL., :

Defendants-Appellants. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: November 4, 2021

Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-19-915969-A

Appearances:

Cohen, Rosenthal & Kramer, L.L.P., Joshua R. Cohen, and
Ellen M. Kramer, for appellee.

Calfee, Halter & Griswold L.L.P., Mitchell G. Blair, and
Anthony F. Stringer, for appellants, Joseph G. Stafford
and Stafford Law Co., L.P.A.

ANITA LASTER MAYS, P.J.:

Defendants-appellants Joseph Stafford and Nicole Cruz

(“appellants”) appeal the trial court’s decision to grant plaintiff-appellee Sherri

Besman’s (“Besman”) motion to compel forensic imaging of the appellants’
computer. We reverse the trial court’s decision, and remand for further proceedings

consistent with this opinion.

I. Facts and Procedural History

The appellants represented Besman in several legal proceedings

against her former spouse from June 2014 through January 2019, including divorce,

domestic violence, and appellate proceedings. Besman’s divorce agreement

provided for two cash payments to Besman as property division payment and an

award for Besman’s attorney fees from Besman’s ex-husband. The trial court agreed

to the divorce agreement, including the award of attorney fees, and found the

amount fair, just, and equitable.

Besman’s ex-husband complied with the divorce settlement

agreement and paid the attorney fees directly to the appellants to satisfy Besman’s

bill. After the divorce settlement and payment, the appellants continued

representing Besman and performing legal services for her, but did not collect

additional fees from her.

On November 30, 2018, the appellants sent a letter to Besman, asking

her if she wanted her legal file. Besman responded on December 3, 2018, stating

that she did not wish to keep the file except for the documents needed for her current

appeal. On February 21, 2019, Besman informed appellants that she had retained

different counsel to represent her and requested that the remainder of her legal file

be delivered to her. In March 2019, Besman arrived at the appellants’ office and

retrieved her client file, and executed three receipts of acknowledgments on three
separate occasions. Besman signed the acknowledgments stating that she received

the entire case file and documents, including 90 bankers’ boxes, one bag of

dangerous items, and boxes of poster boards.

The appellants maintain that Besman’s billing records for her divorce

proceedings were included in the legal file that she retrieved from their office. The

appellants also maintain that they did not keep electronic records of Besman’s

billing records or file, purging them after her legal bill was paid in full.

On March 28, 2019, Besman filed a claim against the appellants

arguing that the appellants charged Besman an excessive fee for their services. On

June 5, 2019, Besman submitted a discovery request, and on July 26, 2019, the

appellants responded, stating that the requested materials were included in the

materials she retrieved from their office. As a result, the appellants requested access

to the file in Besman’s possession and were informed that 53 of the 90 boxes had

been destroyed by Besman.

Besman then filed a motion for leave to amend her complaint to add

a claim of spoliation of evidence against the appellants. The appellants responded

by filing a motion for sanctions against Besman and her new attorneys. The trial

court granted Besman’s motion and denied the appellants’ motion. Besman filed

her complaint, and the appellants filed their answer, in which they argued that

Besman’s billing records were included in the file that Besman retrieved from their

office in March 2019.
 On October 3, 2020, Besman filed a motion to compel discovery,

requesting that the trial court permit forensic imaging of the appellants’ computer.

Appellants filed their brief in opposition to the motion to compel, arguing privacy

concerns with Besman’s request. On January 12, 2021, the trial court granted

Besman’s motion to compel and ordered the appellants to provide a proposed

electronically stored information (“ESI”) agreement for review by February 6, 2021.

Judgment entry No. 115692665 (Jan. 12, 2021). The appellants filed a motion to

reconsider on January 27, 2021, which the trial court held in abeyance, and then

filed this appeal the next day, assigning one error for our review:

The trial court erred by ordering forensic imaging of appellants’
computer, which contains privileged and confidential information.

II. Interlocutory Appeal of a Motion to Compel Discovery

A. Standard of Review

“A trial court’s discovery orders are generally interlocutory and, thus,

not immediately appealable.” Burton Carol Mgt., LLC v. Ziegler, 11th Dist. Lake

No. 2015-L-070, 2015-Ohio-3552, ¶ 17, citing Walters v. Enrichment Ctr. of

Wishing Well, Inc., 78 Ohio St.3d 118, 121, 676 N.E.2d 890 (1997). “[T]he trial

court’s order compelling discovery was a final appealable order as far as it compelled

the production of privileged material.” N.E. Monarch Constr., Inc. v. Morganti

Ent., 8th Dist. Cuyahoga No. 109845, 2021-Ohio-2438, ¶ 10, citing Burnham v.

Cleveland Clinic, 151 Ohio St.3d 356, 2016-Ohio-8000, 89 N.E.3d 536, ¶ 21 (“Any

order compelling the production of privileged or protected materials certainly
satisfies R.C. 2505.02(B)(4)(a) because it would be impossible to later obtain a

judgment denying the motion to compel disclosure if the party has already disclosed

the materials.”). Id.

We review an order to produce documents for an abuse of discretion.

Allied Debt Collection of Virginia, L.L.C. v. Nautica Entertainment, L.L.C., 2019-

Ohio-4055, 146 N.E.3d 1222, ¶ 26 (8th Dist.). “The term ‘abuse of discretion’

connotes more than an error of law or judgment; it implies that the court’s attitude

is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140 (1983).

B. Law and Analysis

The appellants argue that the trial court erred in failing to apply the

test outlined in Bennett v. Martin, 186 Ohio App.3d 412, 2009-Ohio-6195, 928

N.E.2d 763 (10th Dist.), known as the Bennett test, when considering Besman’s

motion to compel. Specifically, the appellants argue that their computer contains

privileged and confidential information, and the trial court granted Besman’s

motion, permitting forensic imaging of the appellants’ computer in error.

“A forensic image, also known as a ‘mirror image,’ will “‘replicate bit

for bit, sector for sector’” all allocated and unallocated space on a computer’s hard

drive, including any embedded, residual, and deleted data.” Allied Debt at ¶ 27,

quoting Bennett at ¶ 40. “Generally, courts are reluctant to compel forensic imaging,

largely due to the risk that the imaging will improperly expose privileged and

confidential material contained on the hard drive.” Bennett at id. “This court has
adopted the Bennett two-part test utilized by the Tenth District Court of Appeals in

Fasteners for Retail, Inc. v. Dejohn, 8th Dist. Cuyahoga No. 100333, 2014-Ohio-

1729, ¶ 21.” Allied Debt at ¶ 28.

As stated in Bennett, a court must weigh “the significant privacy and

confidentiality concerns” inherent in imaging against the utility or necessity of the

imaging before compelling forensic imaging. Bennett at ¶ 41. A court must

“preserve any private and privileged information.” Id. at ¶ 47. In determining

whether forensic imaging is necessary, the trial court must consider whether the

appellants withheld Besman’s billing record, whether the appellants are unable or

unwilling to search for the billing records, and to what extent have the appellants

complied with the discovery requests. Id. at ¶ 41.

“When a requesting party demonstrates either discrepancies in a

response to a discovery request or the responding party’s failure to produce

requested information, the scales tip in favor of compelling forensic imaging.” Id.

The appellants continue to maintain that Besman’s billing records were provided to

her in the legal file she obtained from their office in March 2019, and that the billing

records are not electronically stored. However, Besman disagrees with the

appellants, pointing out that the appellants have changed their responses. In their

March 23, 2020 supplemental interrogatory response, the appellants responded

that they maintained Besman’s billing materials in paper form and electronically.

However, later, in the appellants’ brief in opposition to Besman’s motion to compel,
they stated that there was no evidence that Besman’s billing statements ever existed

in electronic format.

The facts in this instant case are dissimilar from the facts in Bennett.

In Bennett, the appellants “repeatedly represented that they had disclosed all

responsive documents, when, in fact, they had not.” Id. at ¶ 42. The court found

that “such obfuscation displays a willful disregard of the discovery rules and the trial

court’s orders.” Id. Additionally, the appellants’ “last-minute discovery of certain

responsive documents indicates that when not outright defying the trial court’s

orders, defendants adopted a lackadaisical and dilatory approach to providing

discovery.” Id. However, Besman has not demonstrated and the record does not

reflect that the appellants, like in Bennett, have willfully withheld discovery.

In Fasteners, 8th Dist. Cuyahoga No. 100333, 2014-Ohio-1729, the

appellants appealed “from the trial court’s order compelling them to produce their

computer hard drives for forensic imaging * * *.” Id. at ¶ 1. Similarly, to the facts in

this case, the record did not “demonstrate the requisite showing of defendants’

noncompliance with discovery as mandated under the first portion of

the Bennett procedure.” Id. at ¶ 28. The court determined that the trial court abuses

its discretion “by permitting forensic imaging of electronic devices without first

requiring the requesting party to show that there had been a background of

noncompliance with discovery.” Id. at ¶ 27, citing Scott Process Sys. v. Mitchell, 5th

Dist. Stark No. 2012CA00021, 2012-Ohio-5971, ¶ 38.
 The appellants clarified their seemingly contradictory responses and

stated that although Besman’s billing materials were maintained in paper form and

electronically during their representation of Besman, they purged Besman’s billing

materials after they received Besman’s fee on or about May 30, 2018. (Emphasis

added.) They further state that the paper form of Besman’s billing materials were

returned to her in the 90 bankers’ boxes she retrieved from their office in March

2019. Additionally, the record demonstrates that the appellants availed themselves

to depositions and responded to every discovery request.

The appellants also argued that the trial court also failed to consider

the appellants’ claims of privilege and confidentiality. “Generally, courts are

reluctant to compel forensic imaging, largely due to the risk that the imaging will

improperly expose privileged and confidential material contained on the hard

drive.” Bennett, at ¶ 40. “[B]efore compelling forensic imaging, a court must weigh

‘the significant privacy and confidentiality concerns’ inherent in imaging against the

utility or necessity of the imaging.” Id. at ¶ 41, quoting John B. v. Goetz, 531 F.3d

448, 460 (6th Cir. 2008); Covad Communications Co. v. Revonet, Inc., 258 F.R.D.

5, 11 (D.D.C.2009). We determine that the record does not reflect that the trial court

weighed the privacy and confidentiality concerns that forensic imaging would cause.

The appellants also argues that the trial court erred in failing to

consider Besman’s alleged or possible spoliation of the evidence, specifically 53 of
the 90 boxes the appellants returned to Besman, when ruling on the motion to

compel electronic discovery.

To establish a claim for spoliation of evidence, a plaintiff must prove
the following: (1) pending or probable litigation involving the
plaintiff, (2) that the defendant knew that litigation exists or is
probable, (3) willful destruction of evidence by the defendant
designed to disrupt the plaintiff’s case, (4) actual disruption of the
plaintiff’s case, and (5) damages proximately caused by the
defendant’s actions. Elliott-Thomas v. Smith, Slip Opinion No. 2018-
Ohio-1783, ¶ 10, citing Smith v. Howard Johnson Co., 67 Ohio St.3d
28, 29, 615 N.E.2d 1037 (1993).

Scheel v. Rock Ohio Caesars Cleveland, L.L.C., 2018-Ohio-3568, 108 N.E.3d 1252,

¶ 62 (8th Dist.).

“We review a denial of a motion for sanctions for the spoliation of

evidence under an abuse of discretion standard.” Penix v. Avon Laundry & Dry

Cleaners, 8th Dist. Cuyahoga No. 91355, 2009-Ohio-1362, ¶ 38, citing Cincinnati

Ins. Co. v. Gen. Motors Corp., 6th Dist. Ottawa No. 94OT017, 1994 Ohio App. LEXIS

4960 (Oct. 28, 1994). “If the court finds that relevant evidence was, indeed,

destroyed, then the court has the power to fashion a just remedy.” Simeone v.

Girard City Bd. of Edn., 171 Ohio App.3d 633, 2007-Ohio-1775, 872 N.E.2d 344,

¶ 70 (11th Dist.), citing Am. States Ins. Co. v. Tokai-Seiki, 94 Ohio Misc.2d 172, 175,

704 N.E.2d 1280 (1997).

In the instant matter, Besman filed a motion for leave to file an

amended complaint adding the issue of spoliation. The appellants then filed a

motion for sanctions. The trial court denied the appellants’ motion. Further review
of the record reflects that the trial court, like the trial court in Simeone, denied

appellants’ motion for sanctions without a hearing. In Simeone, “[t]he Eleventh

District concluded that the trial court abused its discretion in denying plaintiffs’

motion for sanctions ‘since it [was] not clear from the judgment entry whether the

court properly considered the motion or whether the evidence was destroyed.’”

Penix at ¶ 56, citing Simeone at ¶ 75.

We determine that the trial court in this instant case did not

demonstrate in its judgment entry whether it properly considered appellants’

motion. Like the court in Simeone, we find appellants’ issue has merit, and

therefore, determine that the trial court shall hold a hearing on the motion for

spoliation. Id. at ¶68.

Our decision rests on whether the trial court abused its discretion in

granting Besman’s motion to compel. In its judgment entry, the trial court did not

demonstrate that it applied the Bennett test. It is not clear from the trial court’s

judgment entry granting Besman’s motion to compel discovery that the trial court

determined whether the appellants withheld Besman’s billing record, whether the

appellants were unable or unwilling to search for the billing records, and to what

extent have the appellants complied with the discovery requests. The spoliation

issue will also help to resolve some of these discovery concerns.

The trial court also did not provide a plan to ensure that privileged

and private information would be protected. Instead, the trial court ordered the
appellants to provide a proposed ESI agreement for review. “[W]here courts do

compel forensic imaging, courts must utilize a protective protocol ‘to ensure that the

forensic imaging is not unduly intrusive,’ which protocol serves to protect the

defendant’s confidential, private, and privileged information.” Allied Debt, 2019-

Ohio-4055, 146 N.E.3d 1222, at ¶ 45, citing Nithiananthan v. Toirac, 12th Dist.

Warren No. CA2011-09-098, 2012-Ohio-431, at ¶ 19, 20. The trial court must

demonstrate that they have complied with the Bennett test before rendering its

decision. We have determined that the trial court has not done so. In determining,

at this time, that the granting of the motion to compel was premature when ordering

forensic imaging we note that it may be an option in the future.

Therefore, because the trial court has not demonstrated that it

followed the Bennett test in reaching its decision, we find that the trial court abused

its discretion in granting Besman’s motion to compel discovery and compel forensic

imaging of the appellants’ computer. Appellants’ sole assignment of error is

sustained.

Judgment reversed and remanded.

It is ordered that appellants recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.
 A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

_________________________________
ANITA LASTER MAYS, PRESIDING JUDGE

LARRY A. JONES, SR., J.,* and
MARY EILEEN KILBANE, J., CONCUR

* Judge Larry A. Jones, Sr., concurred in this Journal Entry and Opinion prior to his
death on October 7, 2021.

(The Ohio Constitution requires the concurrence of at least two judges when
rendering a decision of a court of appeals. Therefore, this announcement of decision
is in compliance with constitutional requirements. See State v. Pembaur, 69 Ohio
St.2d 110, 430 N.E.2d 1331 (1982).)