Court Denies Discovery Related to Party’s Document Retention Policies and Computer Systems and Finds Hard Copy Production Adequate

India Brewing, Inc. v. Miller Brewing Co., 2006 WL 2023396 (E.D. Wis. July 13, 2006)

In this case involving claims and counterclaims alleging breach of contract, fraudulent inducement, and negligent misrepresentation, the court ruled on plaintiff’s motion to compel discovery.

The court first considered plaintiff IBI’s request for a copy of Miller’s document retention policy. IBI argued that deposition testimony given by a Miller employee constituted an admission that he may have destroyed documents related to the case based on the document retention policy. IBI argued that it needed the policy to determine whether additional documents were destroyed. The court found IBI’s characterization of the testimony “a stretch,” and that the actual testimony given by the employee was “a far cry from Cochran admitting that he may have destroyed documents pertinent to this case.” The court further stated that IBI had failed to persuade the court that the document retention policy was relevant to any claim or defense alleged in the pleadings. Accordingly, it denied the motion as to Miller’s document retention policy.

The court also considered IBI’s request for information about Miller’s computer systems and the format of production. After the case was filed, IBI had warned Miller to preserve all electronic documents and evidence pertaining to India, IBI or related persons or entities, and the lawsuit. In its motion to compel, IBI stated it then requested production of all stored electronic documents and information regarding how the electronic documents are stored. Miller stated that it had produced all relevant discovery in hard copy form, and argued that it should not be required to repeat its efforts to give IBI the same items in electronic format. In addition, Miller argued that IBI had asked for but was not entitled to confidential systems-related information encompassing Miller’s computers around the world, as it had no relevance to the case and Miller had adequately responded to discovery requests.

The court denied IBI’s motion, and explained its ruling as follows:

Discovery rules require production of "documents," defined as writings, drawings, graphs, charts, photographs, phonorecords, “and other data compilations from which information can be obtained, translated, if necessary." Fed.R.Civ.P. 34(a). "A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request." Fed.R.Civ.P. 34(c). To the extent that the documents IBI sought in its requests are kept in hard copy in the usual course of business, IBI is not entitled to any other format. To the extent that those documents kept in electronic form have been printed out and organized and labeled to correspond with the document request, again IBI is not entitled to any other format. "[I]f a party produces its electronic information in a hard copy format that mimics the manner in which that information is stored electronically, then that party has not disobeyed Rule 34." N. Crossarm Co. v. Chem. Specialities, Inc., No. 03-C-414-C, 2004 WL 635606, *1 (W.D.Wis. Mar.3, 2004). A party may request information in a specific electronic format, but if it instead simply asks for "documents," adopting the definition in Rule 34(a), production in electronic format is not required. Id. at *2.

For the most part, IBI asked for "documents" or for policies and procedures or information, without specification of the format. Thus, production in hard copy format was responsive. As for IBI’s demands for information on Miller’s electronic storage systems, the court agrees that IBI is not entitled to the information. As the relevant discovery documents appear to have been provided in hard copy format, information regarding Miller’s computer systems is unnecessary and irrelevant. Moreover, even if Miller had produced some items in electronic format, IBI’s discovery request is overly broad and burdensome, incorporating much irrelevant material. For instance, as one example, IBI asked Miller to describe in detail the configuration of its entire computer system since January 1, 1998, including each brand and model of computer, whether desktop or laptop, the amount of memory and capacity of the hard disk, the type and version of operating system, and the brand and model of all peripheral devices. Such an interrogatory on a company the size of Miller is astounding in the context of a contract case. (See also Cade Aff. Ex. 2 Request 25 ("Produce any and all documents and things related to networks or groups of connected computers that allow people to share information and equipment ….").) These requests have no relevance to the claims in this case.

IBI relies on Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003), regarding the preservation of evidence in electronic format. However, that case involved spoliation of evidence – the defendant had failed to retain certain e-mails and backup tapes of the computer system. The court discussed the defendant’s inadequate production and its negligent and grossly negligent destruction of evidence. Here, IBI has nothing but speculation regarding whether Miller has failed to produce what it is required to produce, and no evidence of spoliation has been presented on the record before the court.

(Some citations to the record omitted.)