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A motion for a forensic examination was granted in PlayUp, Inc. v. Mintas, 2025 WL 2017161 (D. Nev. Jul. 18, 2025). On movant’s third try, the court found that the opponent was trying to “gaslight” the court and it granted the motion. While the producing party’s failures were epic, the thoughtful discussion of the governing standard for forensic examinations is important.
This was the “umpteenth” discovery issue in a dispute that arose over a commercial acquisition deal that “went south.” The court wrote:
The parties in this case dispute what led to the demise of the FTX deal: PlayUp and Simic blame Mintas, while Mintas blames Simic. These circumstances are no doubt personal for all involved—and the case involves a lot of money—which has spawned a contentious discovery process.
Id.
Initially, Simic did not produce records to Mintas that were provided pursuant to a separate non-party subpoena. Mintas moved to compel or for a forensic examination. Simic argued lack of possession, custody, or control, because the documents were in relation to his work for PlayUp. The court “resoundingly rejected” that contention, ordering that Simic undertake a thorough search, “in lieu of a forensic examination.” Id. The order denying a forensic examination was without prejudice to Mintas’ right to renew the motion.
Mintas later filed a second motion for forensic examination. “In deciding that motion, the Court found that Simic’s efforts in response to the earlier order were deficient in two ways: (1) he failed to produce documents in their native format and (2) he failed to detail sufficiently his search efforts to find responsive documents.” Id. The court expressed “serious concerns,” but it provided Simic a “final opportunity” to cure. It ordered native production and a declaration detailing his search efforts. Id. Again, the denial of the forensic examination was without prejudice.
Mintas next filed a third motion for forensic examination.
GENERALLY, DISCOVERY OPERATES ON AN “HONOR SYSTEM”
The PlayUp court wrote that discovery should be cooperative, unsupervised, and it resembles an “honor system.” Based on good faith, a responding party certifies that its response is complete and correct. The discovering party must generally accept that certification. This “default reliance” is “particularly strong” in the context of ESI.
Hence, when a party indicates that a reasonable search was undertaken for documents and that no responsive documents were found (or that all responsive documents were produced), such representations will generally carry the day.
Id.
The court continued:
This honor system for discovery works in the overwhelming majority of cases, but the word of a litigation opponent is not sufficient in every case. The discovery rules provide safeguards that may be activated in those cases in which judicial oversight may be warranted…. Most pertinent here, the discovery rules permit a party to request to “inspect, copy, test, or sample” electronically stored information. Fed. R. Civ. P. 34(a)(1).
Id.
This honor system for discovery works in the overwhelming majority of cases, but the word of a litigation opponent is not sufficient in every case.
PlayUp, Inc. v. Mintas, 2025 WL 2017161 (D. Nev. Jul. 18, 2025).
THE STANDARD AND BURDEN OF PROOF FOR FORENSIC TESTING
The court held that Fed.R.Civ.P. 34(a)(1) provides a basis for a court to order a forensic examination of ESI, when appropriate. Id. Because forensic exams are not a matter of right, the court looked to the standard governing such requests:
A determination of whether the circumstances justify forensic imaging requires consideration of whether the responding party has withheld requested information, whether the responding party is unable or unwilling to search for the requested information, and the extent to which the responding party has complied with discovery requests. The scales tip in favor of compelling forensic imaging where there exists evidence of either discrepancies in a discovery response or a failure by the responding party to produce requested information.
Id.
The PlayUp court added:
Stated somewhat differently, a forensic examination is appropriate when there are “serious questions” about the reliability and completeness of the materials produced…, or about the “candor” of the producing party’s assertions…. Courts have also looked to the existence of evasive behavior and purposeful delay1…. Although cases describe various approaches and considerations pertinent to this issue, there is no precise formulation describing exactly when discovery misconduct crosses the Rubicon into territory warranting a forensic examination.
Id. (cleaned up; citations omitted; emphasis added).2
The burden of proof is on the party seeking the forensic examination. Id. An order for a forensic exam is an “extraordinary remedy” and requires “substantial support.” Id. (cleaned up). There must be a “strong showing” of an opponent’s default. Id. Speculation is insufficient. However, “nefarious spoliation conduct” is “not necessarily” required. Id. at n. 3.
As in all e-discovery, Rule 26(b)(1) proportionality and privacy are factors to consider. Id. Courts must also consider whether “less drastic remedies are feasible.” Id. Finally, the decision is committed to the broad discretion of the court. Id. The PlayUp court’s cost-shifting decision is discussed, below.
The court emphasized that:
There are several reasons for exercising caution before allowing a forensic examination. Such a procedure runs counter to the paradigm that “litigants are generally responsible for preserving [and producing] relevant information on their own.” … . Courts also recognize that computers, cell phones, and other electronic devices are not simply “technological convenience[s]. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’” …. “Inspection or testing of certain types of electronically stored information or of a responding party’s electronic information system may raise issues of confidentiality or privacy…. Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.” Fed. R. Civ. P. 34(a), Advisory Comm. Notes (2006).
Id. at n. 5 (citations omitted).
APPLICATION IN PLAYUP
In PlayUp: “Mintas’ motion raises a host of troubling accusations, including arguing that Simic engaged in direct violations of the undersigned’s discovery orders.” On the other hand, the court wrote that Simic is “trying to gaslight the Court with generalized statements that there was no misconduct.” The court wrote:
First, the Court determines whether Mintas has made a strong showing that Simic engaged in the kind of discovery misconduct that ordinarily triggers a forensic examination. Second, the Court considers the availability of alternative remedies, Simic’s privacy interests, and the proportionality of a forensic examination to the needs of the case. Third, the Court addresses the protocol for the forensic examination.
Id.
After repeating the standard, the PlayUp court wrote:
Mintas’ counsel surmised at the hearing that “any way you want to cut it, we’ve got it here in spades.” …. Mintas’ counsel is right.
Id.
The PlayUp court explained the misconduct in great detail. This blog will not repeat all of those details because they are – hopefully – sui generis. The court found evidence of altered documents and wrote:
These types of substantiated accusations of bad faith discovery violations should be the stuff of nightmares for any attorney. And, yet, the response to the pending motion ignores the issue, providing no rebuttal or argument of any kind.
Id.
Rather than responding, Simic’s attorney had a junior associate send an email and the court wrote that: “This missive does nothing to put the issue to rest; rather, it raises more red flags. Most obviously, the email appears purposefully vague, fails to comply with the order to provide a declaration as to search details, and appears to show that Simic either lost or destroyed the native format version of the document.” Id.
These types of substantiated accusations of bad faith discovery violations should be the stuff of nightmares for any attorney. And, yet, the response to the pending motion ignores the issue, providing no rebuttal or argument of any kind.
PlayUp, Inc. v. Mintas, 2025 WL 2017161 (D. Nev. Jul. 18, 2025).
The court proceeded to discuss Simic’s evasive behavior and inconsistent representation of basic facts, writing:
Hence, within the span of roughly two minutes, counsel shifted from (1) insisting that the native format “just doesn’t exist” to (2) suggesting that the client may be withholding the native format from counsel to (3) offering that “we can” produce the native format.
Id.
The PlayUp court found counsel to not be credible on one point: “When pressed as to inconsistencies in her representations, counsel feigned confusion as to what constitutes a native version of a document only to immediately acknowledge that a copy is not a native version…. At the end of the day, counsel could not explain what her own briefing meant to convey, and was left to effectively concede that the responsive brief simply ignored the very first issue argued in the motion.” Id. 3
The court found “blatant deficiencies” in counsel’s explanation. Id. It wrote:
At best, counsel feigns incompetence through this declaration, indicating that she wrote a brief, filed a declaration …, and appeared for a hearing regarding serious accusations of misconduct with no understanding of the facts and without having undertaken any reasonable effort to obtain such an understanding.
Id.
After additional analysis, the PlayUp court wrote:
At this stage, it is undisputed that Simic failed to timely provide discovery in response to the discovery request and in accordance with the Court’s order. Moreover, the story portrayed by Simic and his counsel as to SIMIC000004 has been in constant flux, sometimes changing literally by the minute. Given the repeated misrepresentations, the Court has no confidence in the accuracy of the current representations made as to the document at issue, including whether the actual native version of these notes has truly been produced. As to the perpetual foot-dragging and evasion, the Court has been given no clear answers as to the undeniable tardiness of the production efforts.
Id.
After a review of Simic’s court-ordered declaration, the court wrote:
Simic’s response to the motion amounts to smoke and mirrors…. Rather than properly address this issue in the briefing, Simic’s counsel attempted to bridge the declaration’s gaps at the hearing based on her “understanding” of what was supposed to be said in the declaration (but was in reality omitted)…. In short, the Court agrees with Mintas that, despite two orders, Simic failed to substantiate that a reasonable search was undertaken for a wide swath of responsive documents from text messages, his laptop, or Microsoft Teams account. Simic’s violations and evasive misconduct raise serious questions as to the completeness of the production made.
Id.
With this record, the PlayUp court’s conclusion was:
Mintas has made a strong showing of discovery misconduct. Summed up in legal terminology pertinent to this motion, Simic has displayed many different types of behavior that warrant a forensic examination, including “failure[s] by the responding party to produce requested information,” “serious questions” about the reliability or completeness of the materials produced, “serious questions” about the “candor” of the producing party’s assertions, and “foot-dragging” of the responding party.
Id.
…Simic has displayed many different types of behavior that warrant a forensic examination, including “failure[s] by the responding party to produce requested information,” “serious questions” about the reliability or completeness of the materials produced, “serious questions” about the “candor” of the producing party’s assertions, and “foot-dragging” of the responding party.
PlayUp, Inc. v. Mintas, 2025 WL 2017161 (D. Nev. Jul. 18, 2025).
THE REMEDY
The PlayUp court concluded that lesser remedies were not feasible in light of the fact that Simic had both opportunity and warning.
The court-ordered forensic protocol was:
- The parties must confer on a third-party examiner;
- Simic must provide access to PlayUp’s Teams database, the playup.com email account, and any electronic device used to conduct PlayUp business;
- The examiner would use keywords and date parameters specified in the order;
- The “hits” would be produced to Simic’s attorney for privilege review and privilege logging; and,
- After a meet and confer, any disputes would be promptly referred to the court.4
When a forensic exam is ordered, cost-shifting is permitted.5 The PlayUp court ordered that, because Simic’s conduct created the need for a forensic examination, he had to bear the cost of it. Id. at n. 15.
On the same date, the court entered an “ORDER denying 649 Motion to Withdraw as Attorney. The motion may be renewed with a proper factual showing at an appropriate juncture,” PlayUp, Inc. v. Mintas, 2:21CV02129, Docket No. 667, and a motion to seal an exhibit, Dkt. 668.
Notes
