Palgut v. City of Colo. Springs, 2006 WL 3483442 (D. Colo. Nov. 29, 2006)

This order constitutes the parties’ stipulated Electronic Discovery Plan and Order to Preserve Evidence in this employment discrimination case. It includes definitions of various terms and sets out a number of discovery “protocols,” one of which relates to the format of production. The plan states that, “if requested information is or has been stored or located in native (eg. .doc, .xls, .pst) formats (not .tiff images), any requests for “documents,” or “data” shall be deemed a request for information in native format.” (Emphasis in original). The order then sets out a procedure for objecting to production in native format, which seems to conflate the new Rule 26(b)(2)(B) two-tier discovery provision with the new Rule 34(b) format of production provision:

If either party objects to producing the requested information on the ground that production in that format is not reasonably accessible because of undue burden or cost, prior to asserting an objection, the responding party will inform the requesting party of the format in which it is willing to produce it, the nature and location of the information claimed to not be reasonably accessible, the reason(s) why the requested form of production would impose an undue burden or is unreasonably costly, and afford the requesting party 10 working days (calendar days minus weekends and state or federal holidays) from receipt of such notice to propose an alternative means of compliance with the request, including payment of all or part of the costs of retrieving the information.

The order sets out a similar procedure for objecting to the production of electronic information; it also directs the parties’ computer experts to informally cooperate and discuss procedures or protocols to facilitate identification, retrieval and production of computerized information, prohibits the parties from altering or destroying documents (as that term is defined therein), and directs the parties to meet and confer on the issue of cost allocation.

Plasse v. Tyco Elecs. Corp., 2006 WL 3445610 (D. Mass. Nov. 8, 2006)

This decision follows the court’s earlier order on sanctions, summarized here, in which the court dismissed the complaint with prejudice and invited the defendant to file an application for attorneys’ fees. Defendant sought $79,524.07 in attorney’s fees and costs in the amount of $20,472.32. The court noted there was ample justification for a fee award in the record, since the evidence showed that the plaintiff “not only altered and destroyed evidence to prevent relevant discovery by Defendant, but continued to modify and destroy evidence even after the court itself had made it clear that the evidence constituted an appropriate area of inquiry for Defendant.” It reduced the attorney fee amount but awarded full costs, stating:

Given Plaintiff’s egregious conduct, an award of fees and costs is only fair. Given the record of this case, however, a fee award of nearly $80,000 would be excessive. The record of the case, as Plaintiff points out, evidences some degree of duplication and overkill. Based on this, the court will award attorney’s fees in the amount of $35,000.00. The court will award Defendant its full costs, since retention of experts was particularly necessary to uncover Plaintiff’s skulduggery.