Format Of Production – Page 12 – Electronic Discovery Law

Virco Mfg. Corp. v. Hertz Furniture Sys., No. CV 13-2205 JAK(JCx), 2014 WL 12591482 (C.D. Cal. Fan. 21, 2014)

Dec 01 2014

Key Insight: The court granted Defendant?s motion to compel production of email attachments, noting that ?by failing to produce email attachments, plaintiff has effectively redacted, based upon relevance, portions of documents it otherwise apparently views to be discoverable/relevant/responsive to defendants? discovery requests.? The court further noted that Plaintiff ?offered no evidence that it would suffer any undue burden from producing such electronic data.?

Electronic Data Involved: Email

Green v. Monarch Recovery Mgmt., Inc., No. 1:13-cv-00418-SEB-MJD, 2014 WL 1631825 (S.D. Ind. Apr. 24, 2014)

Dec 01 2014

Key Insight: Where defendant produced PDF version of requested spreadsheet which was over 1,000 pages long when printed with only 50 pages that were not redacted, court ruled that spreadsheet must be produced in its native Excel format, explaining: 1) “One of the unique strengths of Excel software is the ability to implement calculations and formulae that are not evident in a PDF version, so merely a PDF imprint of the surface information is not sufficient,” 2) the ability to search the spreadsheet is essential to its usefulness, and 3) due to its structure, a printed or PDF version of a large Excel spreadsheet is “often useless” from an evidentiary standpoint

Nature of Case: Fair Debt Collection Practices Act claims

Electronic Data Involved: Excel spreadsheet

Sexton v. Lecavalier, 11 F. Supp. 3d 439 (S.D.N.Y. Apr. 11, 2014)

Dec 01 2014

Key Insight: Court declined to hold third party in contempt where failure to produce Gmail in native format was result of good faith (but mistaken) belief that Gmail emails cannot be produced in native format; opinion noted options for production of Gmail emails in native format

Electronic Data Involved: Gmail emails

Ogden v. All-State Career School, No. 2:13cv406, 2014 WL 1646934 (W.D. Pa. Apr. 23, 2014)

Dec 01 2014

Key Insight: Court observed that ordering plaintiff to permit access to or produce complete copies of his social networking accounts would permit defendant to cast too wide a net and sanction an inquiry into scores of quasi-personal information that would be irrelevant and non-discoverable, and stated: ?Defendant is no more entitled to such unfettered access to plaintiff’s personal email and social networking communications than it is to rummage through the desk drawers and closets in plaintiff’s home”; court ruled that defendant was only entitled to limited discovery of plaintiff’s communications, and set out particular steps that plaintiff must take to comply with defendant?s requests

Nature of Case: Hostile work environment and disparate treatment based on reverse gender discrimination and retaliation claims

Electronic Data Involved: Electronic communications made or affirmatively acknowledged by plaintiff on any social networking website (e.g., Twitter, Facebook, MySpace) during the period of alleged harassment

Nat?l Jewish Health v. WebMD Health Servs. Grp., Inc., No. 12-cv-02834-WYD-MJW, 2014 WL 2118585 (D. Colo. May 21, 2014)

Dec 01 2014

Key Insight: Where Plaintiff maintained emails in Enterprise Vault with journaling capabilities (which captures and stores all emails in one place) and all ESI produced was searchable, sortable, paired with relevant metadata and included Concordance load files (and where emails were also produced with their attachments), the special master found the production met the requirements of 34(b)(2)(E)(ii) and was both properly produced in the form in which it was ordinarily maintained and in a reasonably usable form and further found that although 34(b)(2)(E)(i) did not apply to ESI, the production also satisfied the traditional requirement to produce documents (which ESI is not) in the manner in which it is kept in the usual course of business; special master made clear that a custodian need not be an individual and that ?[a] company, through an IT department, can serve as the custodian of electronic files kept on company servers.?

Electronic Data Involved: ESI, email

A.J. Amer Agency, Inc. v. Astonish Results, LLC, No. 12-351S, 2013 WL 9663951 (D.R.I. Feb. 25, 2013)

Dec 01 2013

Key Insight: Observing that the meet and confer requirement is not an empty formality, court ordered parties to engage in a substantive good faith conferral and to follow five directives: 1) plaintiff?s requests for material in electronic format should be based on what it has already, what it needs for this case, as well as what is reasonably accessible, mindful of the cost-shifting provisions in Rule 26(b)(2)(B); 2) parties should consider what approach would be least costly and burdensome to defendant for production of comparable websites with similar graphics; 3) only sales training materials actually reviewed by the sales team that presented to plaintiff were discoverable; 4) plaintiff should explore what material is already accessible to it using a password that it already has before exploring with defendant what needs to be produced with respect to particular software; 5) once the scope of appropriate discovery is clear, defendant should supplement its responses to specify whether documents exist or not

Nature of Case: Insurance agencies alleged claims for breach of contract, fraud in the inducement, breach of fiduciary duty and breach of obligation of good faith and fair dealing arising from a marketing agreement between defendant to supply websites, digital marketing, training and consulting services

Electronic Data Involved: ESI; website templates, sales training materials

RPM Pizza LLC v. Argonaut Great Cent. Ins. Co., No. 10-684-BAJ-SCR, 2013 WL 6054551 (M.D. La. Nov. 15, 2013)

Dec 01 2013

Key Insight: Court ordered defendant to provide ESI in the format requested, reasoning that defendant waived its objection by not timely asserting it, and also rejected the argument that the plaintiff had not shown why it was necessary for defendant to produce in the requested form where, pursuant to Fed. R. Civ. P. 24(b)(2)(E), a requesting party is not required to make such a justification

Electronic Data Involved: ESI

Peerless Indus., Inc. v. Crimson AV LLC, No. 11 C 1768, 2013 WL 1195829 (N.D. Ill. Mar. 22, 2013)

Dec 01 2013

Key Insight: District court evaluated and overruled each of defendants’ objections to various discovery rulings of magistrate judge, applying a “clearly erroneous” standard of review; among other things, district court found that magistrate judge did not err in ruling that defendants’ production of ESI was insufficient in that it lacked all of the required metadata, e.g., author information, information about whether the file was stored, and revision histories for computer-aided designs

Nature of Case: Claimis for patent infringement and design patent infringement arising out of defendants’ manufacture and sale of certain TV mounts

Electronic Data Involved: ESI

In re Zoloft (Sertraline Hydrochloride) Prods. Liab. Litig., MDL No. 2342, 2013 WL 8445354 (E.D. Pa. Oct. 31, 2013)

Dec 01 2013

Key Insight: Upon the Plaintiffs? Steering Committee?s motion to compel Pfizer to produce a log identifying documents withheld from production as non-responsive or irrelevant, particularly email attachments, the court noted the prior comprehensive treatment of the question of whether attachments must be produced in Abu Dhabi Commercial Bank v. Morgan Stanley & Co, Inc., No. 08 Civ. 7508(SAS), 2011 WL 3738979 (S.D.N.Y. Aug. 18, 2011) and concluded in this case that requiring defendant to log or produce with redactions those documents previously withheld was not warranted absent a showing of a ?systematic failure in Pfizer?s document review? or that the failures were ?on a large scale? or the product of an ?unjustified decision? but reasoned that the burden of requiring a log or other justification for the witholdings going forward would not carry as high a burden and ordered the parties to confer to determine how best to track that information going forward

Nature of Case: Product Liability

Electronic Data Involved: Attachments to ESI, particularly email

Franco-Gonzalez v. Holder, No. CV 10-2211-DMG (DTBx), 2014 WL 8116823 (C.D. Cal. May 3, 2013)

Dec 01 2013

Key Insight: Court partly granted plaintiffs? motion to compel, requiring government: (1) to re-produce all documents it had produced in a “locked” password-protected file either as they were kept in the ordinary course or organized and labeled to correspond to document requests, (2) as to other documents government had previously re-produced, to provide an index identifying, by date of production and bates number, which documents each reproduction was meant to replace, and whether any documents were new, and (3) as to documents from which government had redacted on the basis of non-responsiveness and not on the basis of any privilege, to produce unredacted versions of such documents

Nature of Case: Class action concerning government’s detention and removal of immigrants with mental issues

Electronic Data Involved: Various documents related to over 200 detainees, includingi A-file, medical documents, records of proceedings and database information

Tag:Format Of Production