Court Compels Production of Foreign Data and Re-Production of “Already-Produced” Electronic Discovery in a Reasonably Usable Form

Accessdata Corp. v. ALSTE Tech. GMBH, 2010 WL 318477 (D. Utah Jan. 21, 2010)

In this breach of contract case, the court granted plaintiff’s motion to compel and ordered defendant (a German company) to produce responsive third-party, personal data, despite objections that such production would violate German law.  The court also granted plaintiff’s motion to compel the re-production of previously produced electronic discovery where defendant’s initial production did not conform to the requirements of Fed. R. Civ. P. 34.

Plaintiff, an American company, sought to compel defendant’s production of documents, including information related to customer complaints and defendant’s technical support of non-customers.  Defendant objected to the interrogatories and requests for production on the grounds that they were overly broad, unduly burdensome, and seeking irrelevant information and because “disclosure of information relating to third parties’ identities would violate German law.”

Addressing the production of third-party, personal data and defendant’s claim that such production “would be a huge breach of fundamental privacy laws in Germany,” the court found that defendant “failed to demonstrate the verity of this assertion” by failing to cite a particular provision of German law that would prohibit such disclosure.  Moreover, the court cited to a section of the German Data Protection Act (GDPA) that seemed to allow for such a transfer of third party information upon meeting certain conditions, including receipt of consent of the third party.  Further, the court reasoned that even if the GDPA prohibited such disclosure, the United States Supreme Court has held that “[i]t is well settled that such [blocking] statutes do not deprive an American court of the power to order a party subject to its jurisdiction to produce evidence even though the act of production may violate that statute.”  Turning to defendant’s assertion that plaintiff should be required to comply with the rules set forth in the Hague Convention for Taking Evidence Abroad with respect to private customer information, the court acknowledged that “[p]arties might properly be required to resort to Hague Convention procedures ‘in suits involving foreign states, either as parties or as sovereigns with a coordinate interesting the litigation’ or if ‘the additional cost of transportation of documents…to or from foreign locations…increase[s] the danger that discovery [is] sought for [an] improper purpose,” but reasoned that “neither circumstance is present [here] where the costs of transmitting information and electronic documents ought to be relatively minimal.”

After addressing several other discovery requests, the court then turned to plaintiff’s request for the re-production of certain electronic discovery in native format.  Plaintiff claimed that defendant failed to produce electronic discovery “in a form or forms in which they are ordinarily maintained or in a reasonably usable format” as is required by Fed. R. Civ. P. 34.  Defendant argued that its production of scanned documents converted to PDF format was sufficient.  The court disagreed, noting its confidence that “most (if not all) of the documents already produced would have been ordinarily maintained in an electronic format.”  The court further noted the rule’s Advisory Committee Notes, which state that “[i]f the responding party ordinarily maintained the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.”  Accordingly, the court ordered defendant to re-produce the already-produced electronic discovery “in its native format or, at least, in an electronically-generated PDF format.”

A copy of the full opinion is available here.