Format Of Production – Page 14 – Electronic Discovery Law

Kickapoo Tribe of Indians of Kickapoo Reservation in Kan. v. Nemaha Brown Watershed Joint Dist. No. 7, No. 06-CV-2248-CM-DJW (D. Kan. Sep. 23, 2013)

Dec 01 2013

Key Insight: Court sustained District’s objection that it did not have duty to produce documents from persons no longer associated with the District who were not parties to the litigation, as plaintiff failed to establish that District had the necessary control over requested documents or that District had legal right to obtain such documents on demand from former District board members, staff or employees; court further denied motion to compel forensic mirror imaging of computers and other electronic devices personally owned by current and former District board members, employees and staff, as District already produced forensic mirror images of two District computers, District lacked possession or control of personally-owned computers, there was no showing that any personally-owned computers of board members, employees and staff were used by those persons for District business, and court had significant concerns about intrusiveness of request and privacy rights of individuals to be affected

Nature of Case: Dispute over water rights

Electronic Data Involved: ESI

Teledyne Instruments, Inc. v. Cairns, No. 6:12-cv-854-Orl-28TBS, 2013 WL 5781274 (M.D. Fla. Oct. 25, 2013)

Dec 01 2013

Key Insight: Where Plaintiff sought to inspect Defendants? computers and devices based on discrepancies discovered between metadata produced by Defendants and metadata extracted by Plaintiff?s expert, court denied the motion upon the explanation that system metadata and application metadata are not always the same and where Plaintiff failed to adequately explain why the discrepancies were cause for concern; court undertook extended discussion of format of production issues related to production ?in the ordinary course of business? and found that Defendants? production of native files (both email and other ESI) with an accompanying spreadsheet providing additional information related to where the documents were kept and how they were organized was sufficient, but, as to ?converted files and non-ESI documents,? ordered a production log identifying to which request each was responsive;? court ordered Plaintiff to produce a categorical privilege log

Nature of Case: Breach of contract, conversion

Electronic Data Involved: ESI, email, hard copy

Ford Motor Co. v. Mich. Consol. Gas Co., No. 08-CV-13503, 2013 WL 5435184 (E.D. Mich. Sep. 27, 2013)

Dec 01 2013

Key Insight: Magistrate judge evaluated plaintiffs? work product, attorney-client privilege, joint defense and common interest privilege claims, set out various findings and guidelines, and ordered plaintiffs to update their respective privilege logs and produce certain documents; magistrate judge further ruled that, because Ford had earlier produced voluminous documents as they were kept in the usual course of business, it had no further duty under Rule 34 or otherwise to organize and label the documents to correspond with individual requests for production

Nature of Case: Current and former property owners sued former operator of manufactured gas plant

Electronic Data Involved: Environmental investigation, remedy assessment and allocation related documents

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

United States v. Briggs, No. 10-CR-184S, 2012 WL 5866574 (W.D.N.Y. Nov. 16, 2012)

Dec 01 2012

Key Insight: Court adopted lower court?s report and recommendation which denied defendant?s motion for sanctions related to the government?s discovery behaviors, including its production of ESI in searchable PDF but without the ability to manipulate the data, which defendant alleged failed to comply with the courts? prior order; court?s opinion, like prior opinions in this case, made clear the difficulties associated with a lack of controlling e-discovery case law/guidelines in criminal cases and put the Government ?on notice? that the Court would ?not hesitate to scrutinize the Government?s ESI discovery procedures to ensure responsiveness and fairness.?

Nature of Case: Criminal

Electronic Data Involved: Database, esi

S2 Automation LLC v. Micron Tech., Inc., No. CIV 11-0884 JB/WDS, 2012 WL 3656454 (D.N.M. Aug. 9, 2012)

Dec 01 2012

Key Insight: Court addressed a myriad of discovery disputes related to privilege logs, format of production, adequacy of plaintiff?s search for responsive materials, and the adequacy of its responses to defendant?s requests and ruled, among other things, that: plaintiff?s production in PDF was unacceptable and that production must be in native format or in the format requested by defendant and that plaintiff?s counsel?s statements (related to the court by sworn affidavit from defendant) were sufficient to put the adequacy of his compliance with Rule 26(g) in question and require production of plaintiff?s search strategy, including its interaction with counsel; court also compelled responses to a myriad of individual requests and ordered plaintiff to pay 80% of defendant?s fees in bringing this motion

Electronic Data Involved: ESI

Coquina Invs. v. Rothstein, No. 10-60786-Civ., 2012 WL 3202273 (S.D. Fla. Aug. 3, 2012)

Dec 01 2012

Key Insight: Court found that counsel for Defendant ?acted negligently in failing to comply with its discovery obligations in this case? and that Defendant ?acted willfully in failing to comply with its discovery obligations and assist its outside counsel to properly litigate this case? and ordered that certain adverse facts were established for purposes of this action and that counsel and Defendant pay Plaintiff?s reasonable attorney?s fees and costs associated with its fourth and fifth motion for sanctions; discovery violations identified included: late (including after trial) production of relevant documents, counsel?s failure to produce relevant evidence ?in a manner that preserved the documents qualities? (i.e., with highly relevant formatting changes (e.g. no color) and without metadata), both Defendant and counsel?s failure to ?conduct an adequate search,? and the conspicuous absence of Defendant?s in-house counsel in assisting or supervising the litigation; court also noted that ?[i]n many ways, this is a case of too many cooks spoiling the broth? where the defense included two firms, hundreds of lawyers, and a consultant that only one firm was aware of, for example

Nature of Case: Fraud

Electronic Data Involved: ESI

Tag:Format Of Production