Format Of Production – Page 14 – Electronic Discovery Law

In re Waste Management of Texas, —S.W.3d—, 2013 WL 203603 (Tex. App. Jan. 18, 2013)

Dec 01 2013

Key Insight: Court denied petition for mandamus relief from order compelling re-production of ESI in native format with metadata where Waste Management failed to establish that the order would result in undue burden, among other things; in its analysis of undue burden, the court concluded that a request for production in a ?reasonable manner? was a sufficient to satisfy the requirement that a party ?specify the form? in which ESI should be produced (rule 196.4) and that the estimated expense of $5,500.00 to accomplish reproduction did not pose an undue burden and reasoned, in part, that the order was not unduly burdensome because of Waste Management?s ?conscious decision? to remove metadata from the original production; opinion also addressed Waste Management?s claim that the matters to be disclosed included trade secrets, its claim that the order was overbroad, issues related to the preservation of claims for appeal, and the question of whether Waste Management?s arguments related to cost allocation could adequately be addressed on appeal

Nature of Case: Petition for writ of mandamus

Holcomb v. Wells Fargo Bank, N.A., No. CV412-111, 2013 WL 434974 (S.D. Ga. Feb. 4, 2013)

Dec 01 2013

Key Insight: Where plaintiff claimed that the document index which identified which Bates stamped document responded to which document request was not sufficient to enable a meaningful review and that Plaintiff?s counsel was ?unable to decipher the content? of what was produced (apparently because of the presence of ?jargon? and other codes), the court found that the document production was adequate under Rule 34, noting that there was no suggestion that the documents were not produced as they were kept in the usual course of business and that they were identified by Bates stamps to correspond with specific requests but nonetheless ordered counsel to confer in good faith to attempt resolution of ?any ?deciphering? issues? “(e.g. defense counsel or staff could sit down with plaintiff?s counsel and explain any coding or abbreviations?or have a corporate representative provide a glossary of some sort)”

Nature of Case: Lender-liability arising from alleged wrongful foreclosure

Electronic Data Involved: ESI

Transamerica Life Ins. Co. v. Lambert, No. 4:12-CV-1253 CAS, 2013 WL 4028275 (E.D. Mo. Aug. 7, 2013)

Dec 01 2013

Key Insight: Court granted cross-claim plaintiff’s motion to compel cross-claim defendant to produce computer and cell phone used by decedent by shipping those devices from Jonesboro, Arkansas to St. Louis, Missouri (at cross-claim plaintiff’s expense) for forensic examination because cross-claim defendant’s production of copies of cell phone text messages and a non-forensic copy of the computer hard drive were insufficient to respond to plaintiff’s request for production of the devices themselves, since the copies did not allow for forensic examination of the devices, and because the slight inconvenience to cross-claim defendant in not having access to the cell phone and computer for a period of time was outweighed by the significant additional expense cross-claim plaintiff would incur if she were required to examine the devices in Jonesboro

Nature of Case: Probate matter

Electronic Data Involved: Computer and cell phone used by decedent

James v. UMG Recordings, Inc., No. 11-cv-01613-SI (MEJ), 2013 WL 5978322 (N.D. Cal. Nov. 8, 2013)

Dec 01 2013

Key Insight: Where plaintiffs could surely foresee the need to manipulate royalty data but did not specify production in electronic form, and defendant had already twice produced the documents and argued that production of electronically formatted royalty statements would require creation of new documents not currently in existence, court denied plaintiffs’ motion to compel production of the data in electronic format, stating that plaintiffs’ proffered justification that Excel format would be more convenient “falls far short of the mark”; court further denied plaintiffs’ request for receipts data, finding that the burden of reprogramming royalty database and creating new software to extract information far outweighed usefulness of ordering production given that plaintiffs stated they could discern the data by extrapolation

Nature of Case: Consolidated putative class action for breach of contract and other claims filed by recording artists and producers who alleged that defendant underpaid royalties on digital downloads of plaintiffs’ recordings

Electronic Data Involved: Royalty statements in Excel format, receipts from download transactions with vendors

Ameranth v. Pizza Hut, Inc., 2013 WL 636936 (S.D. Cal. Feb. 20, 2013)

Dec 01 2013

Key Insight: Court declined to compel production of ?the entire source code tree for each accused product? where it found that Plaintiff had not shown the need to fully understand all operations as opposed to ?only those aspects accused in the infringement claims? and where the alleged burden of production was great; court ordered that production of relevant portions of source code must include original files names and be in native format

Nature of Case: Patent Infringement

Electronic Data Involved: Source Code

Home Instead, Inc. v. Florance, No. 8:12CV264, 2013 WL 5979629 (D. Neb. Nov. 8, 2013)

Dec 01 2013

Key Insight: Finding defendants? effort to respond to discovery inadequate in various respects, court granted plaintiff’s motion to compel and ordered defendants: (1) to provide detailed listing of all documents responsive to plaintiff’s discovery and in defendants’ possession, custody or control as of date of discovery requests, but which were not produced because defendants destroyed, deleted, sold, shredded or otherwise discarded them, along with a description of how and when defendants lost control or possession of such information, (2) to further search for and respond to discovery, produce any additional discovery located, and explain by written affidavit, as to each separate document request, the efforts made to locate responsive documents, and (3) to provide a sworn affidavit outlining whether a litigation hold was put in place, persons to whom litigation hold letter was sent, directions for preservation, sources identified for search, search terms used and efforts to ensure compliance with litigation hold; court further faulted defendants? production of one large PDF that contained no metadata, no indication of parent-child document relationship, and no indication as to the beginning and end of each document, and ordered defendants to produce responsive information in a manner that complied with the Federal Rules

Nature of Case: Franchise dispute involving claims for violation of non-compete clause, misappropriation of trade secrets and license marks, and other claims

Electronic Data Involved: ESI

Fed. Deposit Ins. Co. v. Johnson, No. 2:12-cv-00209-KJD-PAL, 2013 WL 1195698 (D. Nev. Mar. 22, 2013)

Dec 01 2013

Key Insight: Considering competing ESI protocols, court approved FDIC?s protocol which included provision that Defendant would pay $.06 per page for documents selected for physical production after review in an electronic database citing, among other things, the fact that the FDIC had already spent $791,000 to locate and produce responsive information and relying on a line of cases ?which have held that a party responding to discovery requests is responsible for the initial costs of reviewing and preparing paper documents and ESI for inspection and copying, but is not responsible for paying copying costs for voluminous materials.?

Electronic Data Involved: ESI

Bean v. John Wiley & Sons, Inc., No. CV 11-08028-PCT-FJM, 2012 WL 129809 (Jan. 17, 2012)

Dec 01 2012

Key Insight: Court granted motion to compel defendant to produce a key explaining the codes used on an already-produced spreadsheet where Rule 34(a)(1)(A) ?explicitly places the burden of translating the data on the responding party? and where the task of providing plaintiff with the meaning of specifically identified acronyms was not overly burdensome compared to requiring plaintiff to figure them out using prior deposition testimony and ?informal communications with counsel?

Nature of Case: copyright infingement

Electronic Data Involved: Spreadsheet

In re Porsche Cars N. Amer., Inc. Plastic Coolant Tubes Prods. Liability Litig., No. 2:11-md-2233, 2012 WL 203493 (S.D. Ohio Jan. 24, 2012)

Dec 01 2012

Key Insight: Addressing Plaintiff?s motion for an Order Regarding Production of Electronically Stored Information, court limited scope of its findings and order to jurisdictional discovery and granted plaintiff?s motion to the extent that it required production of ESI in its native format with metadata intact, noting that plaintiff did not have the burden of showing why the metadata requested with native format production was relevant to each of their requests and that upon a request for production in a specific format, the burden shifts to producing party to show why it is unduly burdensome

Nature of Case: Products liability

Electronic Data Involved: ESI in native format

Indep. Mktg. Group, Inc. v. Keen, No. 3:11-cv-447-J-25MCR, 2012 WL 207032 (M.D. Fla. Jan. 24, 2012)

Dec 01 2012

Key Insight: Where plaintiff produced ESI as documents compiled onto just a few PDF files that lacked metadata or searchable text by printing the ESI and then scanning it for production and resisted reproduction on the grounds of undue burden based on the estimated $10,000 cost of doing so, the court found that the ESI was not produced as ordinarily kept or in a reasonably usable format and further declined to find the information was not reasonably accessible or, if it was, that good cause had been shown to compel reproduction

Nature of Case: Breach of fiduciary duties, tortious interference with business relationships, fraud, breach of contract, conversion, and replevin

Electronic Data Involved: ESI

Tag:Format Of Production