Format Of Production – Page 23 – Electronic Discovery Law

In re Netbank Sec. Litig., 2009 WL 2461036 (N.D.Ga. Aug. 7, 2009)

Dec 01 2009

Key Insight: Court ordered production of ESI in native format, despite defendants? objections that such production was not required by the federal rules, allowed for the alteration of documents, and prevented bates labeling, among other reasons, where defendants? problems were deemed ?hypothetical? and where plaintiff ?definitively stated? that the provision of TIFF documents both made the review more expensive and served to conceal metadata

Nature of Case: Class action securities litigation

Electronic Data Involved: ESI

Hearst v. State, 2009 WL 1037730 (N.Y. Sup. Ct. Apr. 16, 2009)

Dec 01 2009

Key Insight: Where government entities were not required to prepare any record not already possessed or maintained by such an entity in response to a FOIL request and where state agency argued a response to petitioner?s request would require such preparation to protect government employee?s social security numbers, court agreed with agency and denied petitioners? requests as stated but ordered production of data extracted using petitioners? suggested method, despite acknowledgement of inferiority of resulting information, where such extraction would substantially accomplish petitioners? objectives but maintain state employees? privacy protection

Nature of Case: FOIL request

Electronic Data Involved: ESI, metadata, databases

Transcap Assoc., Inc. v. Euler Hermes Am. Credit Indemnity Co., 2009 WL 3260014 (N.D. Ill Oct. 9, 2009)

Dec 01 2009

Key Insight: Where defendant ?produced? archived marketing materials by directing plaintiff to website commonly known as the Way Back Machine (which itself warned of missing links and image in webpages) and did not establish or allege that it maintained material on the Way Back Machine in the ordinary course of business, and where the court determined defendant had not adequately investigated the existence of responsive documents in paper form, court granted motion to compel and ordered defendant to conduct ?a thorough search? for responsive documents and to produce them in paper or electronic format within 14 days; court ordered plaintiff to pay attorneys fees and costs and imposed monetary sanctions against plaintiff for the numerous discovery violations addressed in the opinion

Nature of Case: Insurance coverage action

Electronic Data Involved: Way Back Machine

Henderson v. U.S. Bank, N.A., 2009 WL 1152019 (E.D. Wis. Apr. 29, 2009)

Dec 01 2009

Key Insight: Stating that Rule 34 does not give a party the right to conduct their own search of an opposing party?s electronic devices and holding that counterclaim plaintiff must request specific categories of information and allow counterclaim-defendants to conduct their own search for responsive data, court denied counterclaim-defendants? motion to compel production of all computers, hard drives, and other devices containing electronically stored information

Nature of Case: Enforceability of confdientiality and non-compete agreements, misappropriation of confidential inforamtion

Electronic Data Involved: Computers, hard drives, electronic storage devices

Mechling v. City of Monroe, 152 Wash. App. 830 (Wash. Ct. App. 2009)

Dec 01 2009

Key Insight: Court of appeals vacated (in part) judgment of trial court and ruled former statute ?does not exempt disclosure of personal email addresses used by elected officials to discuss city business? and that plaintiff was entitled to the requested email messages without the personal email addresses redacted; court also held that there was no express obligation to produce email records in electronic format, but that statutory duty to ?provide the fullest assistance? obligated trial court to consider reasonableness and feasibility of electronic production on remand; redacted emails need not be scanned and produced electronically

Nature of Case: Complaint pursuant to Public Disclosure Act

Electronic Data Involved: Email addresses, emails

Triple-I Corp. v. Hudson Assocs. Consulting, Inc., 2009 WL 1210882 (D. Kan. May 1, 2009)

Dec 01 2009

Key Insight: Court declined to award sanctions for production of unreadable cds where there was no indication that the issue was discussed prior to the filing of the motion and no evidence as to who was at fault but ordered defendants to make the records available in a readable format and, if electronic copies were not readable, to print the materials for production; for defendants’ failure to produce documents pursuant to court order and for ?evasive and inappropriate? responses to requests for clarification about that failure, court ordered monetary sanctions against defense counsel personally where the court determined such responses were the result of her tactical decisions

Nature of Case: Interference with contractual relationship and other claims

Electronic Data Involved: ESI

Palm Bay Int., Inc. v. Marchesi Di Barolo, S.P.A., 2009 WL 3757054 (E.D.N.Y. Nov. 9, 2009)

Dec 01 2009

Key Insight: Noting a lack of any indication that plaintiff objected to production in electronic format and highlighting the fact that electronic discovery is permitted under the Federal Rules, court ordered production of discovery in electronic format and directed the parties to confer to determine the best method of production; upon defendant’s assertion that plaintiff failed to produce certain relevant communications as evidenced by the production of previously unseen communications by a third party, court declined to impose sanctions absent evidence of bad faith but indicated a willingness to re-open depositions upon defendant?s submission of subjects to be pursued therein

Nature of Case: Breach of contract

Electronic Data Involved: ESI

Artie?s Auto Body, Inc. v. Hartford Fire Ins. Co., 2009 WL 1578251 (Conn. Super. Ct. May 7, 2009) (Unpublished)

Dec 01 2009

Key Insight: Where defendant?s response to plaintiffs? discovery requests encompassed as many as 20 supplemental responses over 5 years, including the production of 1,487,824 pages of electronically unsearchable ESI 5 years after plaintiffs? first request (which plaintiffs paid to convert to a searchable format), court found defendant?s efforts ?did not represent a good faith effort to comply with the rules of practice or the case management orders of this court? and violated ? 13-14(a) of the Practice Book and accordingly ordered sanctions including allowing re-deposition of witnesses at defendant?s cost, reimbursement of plaintiffs for conversion costs, and payment of plaintiffs? attorney?s fees

Nature of Case: Class action

Electronic Data Involved: ESI

Consolidated Rail Corp. v. Grand Trunk W. R.R. Co., 2009 WL 5151745 (E.D. Mich. Dec. 18, 2009)

Dec 01 2009

Key Insight: Court found plaintiff?s production of 1200 pages ?as they were kept in the normal course of business? was sufficient pursuant to Rule 34 where plaintiff ?identified the document custodians and the range of Bates number for each custodian?s set of documents, along with the date associated with document creation,? where documents were produced in the order they were found on each hard drive, and where email attachments were produced directly following the corresponding email; plaintiff?s failure to arrange emails chronologically was not fatal to plaintiff?s production

Nature of Case: Declaratory judgment action, breach of contract

Electronic Data Involved: ESI, email

Pom Wonderful LLC v. The Coca-Cola Co., No. CV 08-6237 SJO (FMOx), 2009 WL 10655335 (C.D. Cal. Nov. 30, 2009)

Dec 01 2009

Key Insight: Defendant produced 138 emails whose attachments that were not linked, claiming it produced the documents in ?the normal course of business? and had no obligation to re-link the attachments. The court disagreed, stating that ?plaintiff must have the ability to identify which attachments belong to which emails.? Defendant argued it could not automatically re-link the emails with the attachments, but would have to ?employ a tedious manual process.? The court indicated Defendant ?cannot seek to preclude plaintiff from pursuing discovery based on a record-keeping system that is plainly inadequate.? The court found Defendant did not meet the burden to prove it would be unduly burdensome to re-link the message units and granted the motion (Defendant must provide data/software to allow Plaintiff to re-link or must re-produce the 138 emails with their attachments). The court denied the motion to compel Defendant to produce purchase and valuation documents, finding Defendant met its burden to show the requested information is not relevant to this case.

Electronic Data Involved: Email

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