Format Of Production – Page 24 – 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

Autotech Techs. Ltd. P’ship v. Automationdirect.com, Inc., 2008 WL 783301 (N.D. Ill. Mar. 25, 2008)

Dec 01 2008

Key Insight: Where requesting party complained that information generated and produced in response to agreed-upon keyword search of ?Goldmine? database was inadequate and not rectified by index of customer information documents subsequently provided, and that additional information (such as dates) was needed, court ordered parties to confer about how date information could be retrieved and granted motion to compel only to the extent that requesting party?s consultant would be allowed to run his original protocol to determine if date information should have been produced in conformity with that protocol; costs to be borne by requesting party unless it appeared that date information had been wrongly withheld, in which case responding party would bear all of the costs, expenses and attorneys’ fees resulting from nonproduction of the information

Nature of Case: Trademark infringement

Electronic Data Involved: Goldmine customer relations management database

Kinexus Representative LLC v. Advent Software, Inc., 2008 WL 4379607 (Del. Ch. Sept. 22, 2008) (Unpublished)

Dec 01 2008

Key Insight: Where defendant produced ESI as TIFF images and plaintiffs sought order compelling compliance with RFP instruction to ?produce documents in electronic form in the most accessible, searchable, maneuverable and common medium available to [defendant],? arguing that documents must be produced in native file format with metadata or in searchable OCR format, court declined to hold that 2005 Court of Chancery Rules required OCR format or native file format, including metadata, without a particularized showing of need; court found defendant?s proposal to provide searchable ?extracted text? was acceptable compromise and ordered production of ?extracted text? contingent on plaintiffs? agreement to reimburse all of defendant?s related expenses given plaintiffs? failure to timely object to non-searchable TIFF format

Nature of Case: Breach of contract, unjust enrichment

Electronic Data Involved: ESI

WIREdata, Inc. v. Village of Sussex, 751 N.W.2d 736 (Wis. 2008)

Dec 01 2008

Key Insight: Wisconsin Supreme Court disagreed with certain of the court of appeals’ specific holdings, including: that municipalities denied open records requests of WIREdata and, thus, violated open records law; that PDFs were insufficient to comply with such open records requests; and that open records law required access to computerized database; decision of court of appeals reversed in part and affirmed in part, and cases remanded to trial courts

Nature of Case: Company sued municipalities under Wisconsin’s Open Records Law

Electronic Data Involved: Database containing property assessment records

Cartwright v. Viking Indus., Inc., 2008 WL 4283614 (E.D. Cal. Sept. 11, 2008)

Dec 01 2008

Key Insight: Where parties agreed to production of database materials but failed to reach mutual understanding regarding need for privilege log, court held that failure to produce log due to misunderstanding did not waive privilege; court rejected argument that providing log would be unduly burdensome and expensive and ordered production of privilege log within two weeks

Nature of Case: Class action product liability litigation

Electronic Data Involved: Database

Armor Screen Corp. v. Storm Catcher, Inc., 2008 WL 5262707 (S.D. Fla. Dec. 17, 2008)

Dec 01 2008

Key Insight: Where plaintiff produced materials relied on by its expert on DVD in .sav format but defendants alleged it was inaccessible, court held that .sav format was a ?reasonably accessible format? and declined to compel re-production; court?s reasoning included consideration that .sav was format in which expert originally considered the information and evidence that .sav files could be opened by standard ?statistical computer packages?

Electronic Data Involved: ESI, “.sav” data

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