Format Of Production – Page 21 – Electronic Discovery Law

United States v. Perraud, 2010 WL 228013 (S.D. Fla. Jan. 14, 2010)

Dec 01 2010

Key Insight: Despite finding Fed. R. Crim. P. 16 did not require the government to identify the evidence upon which it intended to rely at trial where defendants claimed the government had attempted to overwhelm them by providing access to a database containing millions of documents, and despite government?s production of an index to the database and directions to the materials it deemed most relevant, magistrate recommended the government be ordered to provide defendants with an exhibit list and hard copies of the exhibits ten days before trial, for the government to supplement that list as necessary, and for the government to comply in good faith where the government had previously offered to supply the same

Nature of Case: Conspiracy to destroy records and destruction of records

Electronic Data Involved: ESI

Fleming v. Escort, Inc., 2010 WL 3833995 (D. Idaho Sept. 24, 2010)

Dec 01 2010

Key Insight: Where plaintiff sought the unredacted source code of defendant?s allegedly infringing products, the court credited plaintiff?s expert testimony that because source code ?generally contains notes by the writer of that code ?that explain to others who come later what the [writer] of the code was trying to accomplish at that portion of the code??, all of the source code was necessary to ensure his correct understanding of all portions and ordered plaintiff to produce the source code pursuant to the parties protective order; in so holding, court noted that ?the dilemma? of having to produce source court for unrelated products was of defendant?s ?own making? because of its business practice of bundling the source code for all of its products together

Nature of Case: Patent infringement

Electronic Data Involved: Source code

Reckitt Benckiser, Inc. v. Watson Labs., Inc.-Florida, 2010 WL 4225865 (S.D. Fla. Oct. 21, 2010)

Dec 01 2010

Key Insight: Where defendant ?unilaterally deviated? from the parties? agreement to produce in TIFF format and argued that the cost of conversion was not justified because the documents were ?minimally responsive?, court upheld the agreement and ordered the defendant to re-produce 19,000 documents that had been produced in native format

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Response Personnel, Inc. v. Aschenbrenner, 909 N.Y.S.2d 433 (N.Y. App. Div. 2010)

Dec 01 2010

Key Insight: Where a lower court denied plaintiff?s motion for a protective order and ordered the production of tax returns and other documents in electronic format at plaintiff?s expense, the appellate court affirmed the denial of the protective order and the order compelling electronic production but found that requiring plaintiff to bear the costs imposed an undue burden where ?generally, the costs of production is borne by the party requesting the production, and the cost of creating electronic documents here would not be inconsequential?

Electronic Data Involved: Tax returns and other documents in electronic form

Crews v. Fishburne, 2009 WL 946876 (Cal. Ct. App. Apr. 9, 2009) (Unpublished)

Dec 01 2009

Key Insight: Trial court did not abuse discretion in ordering terminating sanctions where plaintiff (and plaintiff?s counsel) delayed production of discovery, made a ?meaningless production? of an unusable CD upon defendant?s motion to compel, redacted documents without notification to defendants and refused to produce court ordered privilege log, and refused to produce unredacted documents despite a court order

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Graske v. Auto-Owners Ins. Co., 647 F.Supp.2d 1105 (D. Neb. 2009)

Dec 01 2009

Key Insight: Where, when producing voluminous documents in response to Fed. R. Civ. P. 33 they must be accompanied by indices ?to guide the interrogating party to the responsive documents? and where ?rules applicable to producing documents under Rule 33(d) are generally applicable to Rule 34?, court ordered defendant to provide more detailed responses to plaintiffs requests for discovery upon defendants? production of 7000 pages and indication that ?all 7000 pages of documents were responsive to each request?; court reasoned, ?Defendant’s claims that the documents are sufficiently organized because they are bates-stamped and scanned into a CD-ROM are unavailing. Defendant did not refer to specific bates numbers when it responded to the discovery requests at issue, and the fact that the documents can be electronically searched by key term is not sufficient to discharge defendant’s duty to sufficiently identify the location of the relevant documents.?

Nature of Case: Breach of faith and breach of fiduciary duty

Electronic Data Involved: ESI

Craig & Landreth, Inc. v. Mazda Motor of Am., Inc., 2009 WL 2245108 (S.D. Ind. July 27, 2009)

Dec 01 2009

Key Insight: Rejecting defendant?s argument that production of ESI in PDF format was ?well within the requirements? of the rules where plaintiffs sought production in a searchable format and where the rules prohibit conversion to a more burdensome format for production, court granted plaintiffs? motion to compel and ordered production in native format and also ordered defendant to produce ?the appropriate individual? to assist plaintiffs in ?understanding how to manipulate the ?native format?? ESI produced

Electronic Data Involved: ESI

Rahman v. The Smith & Wollensky Rest. Group, Inc., 2009 WL 773344 (S.D.N.Y. Mar. 18, 2009)

Dec 01 2009

Key Insight: Court found plaintiff?s objections to defendants? production in pdf format ?without merit? where plaintiff failed to specify the preferred format of production and where absent such specification ?pdf format?is presumptively a ?reasonably useable form?? and similarly dismissed plaintiff?s substantive complaints regarding the production upon its determination that there was sufficient information for plaintiff?s expert to perform an analysis; court also declined to reconsider denial of spoliation sanctions in light of ambiguous deposition testimony regarding a possible delay in the implementation of a litigation hold and noted the absence of evidence that the gap in production was attributable to such delay

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Synventive Molding Solutions, Inc. v. Husky Injection Molding Sys., Inc., 262 F.R.D. 365 (D. Va. 2009)

Dec 01 2009

Key Insight: Where plaintiff failed to issue a litigation hold, court ordered plaintiff to issue a litigation hold as to those personnel likely to possess discoverable evidence and to file a sworn declaration describing whether any files had been lost, the methods use to determine the existence of such a loss, the extend of the loss, and the nature of the litigation hold placed in response to the present order; court found plaintiff?s production of documents ?problematic? where it failed to organize the production according to Rule 34 and ordered plaintiff to ?amend? its production to comply; acknowledging that ?the identities of those in control of certain documents is information that may be as relevant as the documents? [substance]?, court ordered search and production of President?s documents despite claims that those documents were produced from other custodians

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Cenveo Corp. v. S. Graphic Systs., 2009 WL 4042898 (D. Minn. Nov. 18, 2009)

Dec 01 2009

Key Insight: Where plaintiff produced ESI in .pdf format despite defendants? request for production in native format and later argued the term ?native format? was undefined, court found the term ?native format? was unambiguous and granted defendants? motion to compel the production (and re-production as was necessary) of ESI in native format

Electronic Data Involved: ESI

Tag:Format Of Production