Court Applies Rowe Entertainment Balancing Test and Provides Plan for Electronic Discovery

Medtronic Sofamor Danek, Inc. v. Michelson, 56 Fed.R.Serv.3d 1159, 2003 WL 21468573 (W.D. Tenn. May 13, 2003)

In case involving trade secrets, patents and trade information in the field of spinal fusion medical technology, defendant moved for production of 996 network backup tapes containing, among other things, electronic mail, plus an estimated 300 gigabytes of other electronic data not in a backed-up format.

The parties did not dispute the relevance of the material sought, and hard-copy printouts of representative emails indicated that the backup tapes may contain discoverable material, although neither party was able to estimate how much.

The court applied the Rowe Entertainment balancing test, and determined that cost-shifting was warranted. Further, given the amount of electronic data at issue, the court concluded that the appointment of a special master to oversee discovery was appropriate, and that the special master should be a technology or computer expert. It then set forth a detailed discovery protocol.

The court ordered plaintiff to isolate the 300 gb of electronic data already identified and, using the vendor of its choice, conduct a keyword search. Plaintiff was to produce a complete list of the files identified by the search, along with a list identifying the software application reasonably required to read each type of file. The court stated that plaintiff may then conduct additional searches designed to identify privileged information, and that plaintiff would bear the cost of designing and running any privilege searches. The court then set forth a plan for dividing the electronic files into groups, and conducting privilege review and production of responsive, non-privileged documents on a rolling basis. Notably, the court ordered that responsive, non-privileged files be provided to defendant for review in their native electronic formats (rather than as image files).

The court set forth a similarly detailed plan for the restoration and review of 124 sample backup tapes, and stated that plaintiff would bear 60 percent of the costs associated with restoring, initially searching, and de-duplicating the data to this point in the process. Defendant was ordered to bear 40 percent of the costs to this point. Plaintiff would bear the full cost of privilege searching, including designing and conducting the privilege keyword searches.

In the event that the defendant wished to restore and have searches performed on any additional backup tapes, he would pay the entire cost of restoring the backup tapes, extracting the data, searching the extracted data and de-duplicating the data. Defendant would be responsible for providing any software application necessary to the review. Plaintiff would then review the selected files for relevance and privilege. For any data produced that was created within a specified time frame, defendant would bear the full cost of plaintiff’s relevance and privilege review; for data produced that was created during alternate timeframe, defendant would bear full cost of relevance review and 50 percent of the privilege review.