Court to Require Production of Electronic Data Index Only if Quick and Cheap Searching of CD-ROMs Unavailable

In re Lorazepam & Chlorazepate Antitrust Litig., 300 F.Supp.2d 43 (D.D.C. 2004)

Plaintiffs are Blue Cross Blue Shield of Minnesota and of Massachusetts, the Federated Mutual Insurance Company, and the Health Care Service Corporation (“the Blues”). They opted out of a settlement premised on antitrust violations by the defendant, Mylan Laboratories (“Mylan”).

At the end of the “monumental” anti-trust case, the remaining parties reached an impasse on a discovery issue.

In the antitrust litigation, Mylan had produced a “mountain of information.” Some of it was in electronic form, and some of it was in hard copy. In response to discovery propounded by the Blues, Mylan referred to its prior productions. The Blues complained that the Mylan had not satisfied its obligations under the rules and that Mylan needs to provide a “meaningful and detailed document index” of the material it had previously produced. Mylan argued that the Blues had to do their own work and that Mylan had no further obligation. 2004 WL 77921, at *3.

As to the paper documents, the judge noted that the Blues had already designated what they wanted out of 42 boxes of documents, and that, having taken what they wanted from those boxes, they did not need an index. As to the CD-ROMs, the judge stated that, if the electronic material can be made readable, or more importantly, searchable by the Blues, there was no need for an index of them. The court observed: “The glory of electronic information is not merely that it saves space but that it permits the computer to search for words or ‘strings’ of text in seconds.” Id. at *4. It concluded that it would not take any action on this aspect of the motion to compel until the Blues first made the 23 CD-ROMs available to a company that specializes in computer forensics or electronic discovery to ascertain whether the information on the 23 CD-ROMs could either be read and searched by a commercially available software or converted to a format that will render it capable of being read and searched by commercially available software.

The court ordered the Blues to report back in one week about what they found, and they would proceed from there. The judge concluded: “If, as I hope, the information on the CD-ROM’s can be rendered readable and searchable quickly and cheaply, I expect that the problem of indexing the documents will be a non-issue. If the cost is great, I will still consider having it done, but I will hear from the parties as to whether the cost should be allocated or shared.” Id.