Key Insight: A program to parse relevant data from an existing database may trump usual course of business format
Nature of Case: Telephone Consumer Protection Act
Electronic Data Involved: Electronic list of wrong phone calls
Keywords: computer program, usual course of business,
Key Insight: Plaintiffs files motion to compel text messages in April 2016, Discovery had closed in November 2015. Defendant’s failure to realize that they couldn’t search specifically for text messages is not basis for granting motion to compel so late. Decision was later vacated.
Nature of Case: Contract Dispute
Electronic Data Involved: Text Messages
Keywords: Text messages; after discovery closed
Key Insight: Defendant produced in format requested by Plaintiff. Plaintiff filed motion to compel on grounds documents not matched up to requests. Due to burden on Defendant and lack of prejudice to Plaintiff, Defendant not required to change format of production.
Nature of Case: Breach of Contract
Electronic Data Involved: ESI Production
Keywords: Format; ordinary course of business
Key Insight: Sanctions not found because VHS degrades naturally and missing reports were not proven relevant
Nature of Case: false arrest
Electronic Data Involved: video VHS, lost original tape, paper documents
Keywords: 37(e) ignored, lost original tape, missing reports, culpable state of mind
Key Insight: Can documents be compelled to be produced in multiple formats, or in a certain specified format?
Nature of Case: Employment
Electronic Data Involved: Business documents, personnel files
Keywords: Multiple formats, native format
Key Insight: Court entered order requiring production of software necessary to review responsive data and ordered that either Defendant would ?provide Plaintiff with a laptop computer loaded with a copy of the responsive data and the software necessary to review that data, to be used solely for the purposes of this litigation and to be returned to Defendants once the litigation is complete? or that Plaintiff could procure a license for the necessary software and be reimbursed by Defendant
Nature of Case: Wrongful death
Electronic Data Involved: Software necessary to review responsive data
Key Insight: Where Plaintiffs objected to Defendants? ?duplicative? requests and claimed they had already produced responsive documents but provided Defendants with no guidance as to where such documents could be found within the voluminous production, the court acknowledged that it would ?ordinarily? conclude that Plaintiffs had no obligation to identify responsive documents but, citing the volume of data at issue, the ?asymmetry of information regarding the production between Plaintiffs,? the time the case had been pending, and the fact that additional discovery would be required, the court concluded that Plaintiff should provide additional information and ordered that Defendants would be permitted to identify ten categories of requested documents that Plaintiffs claimed to be duplicative and that Plaintiffs must then identify documents responsive to those requests
Electronic Data Involved: ESI
Key Insight: Following several extensions of discovery, court addressed motion to compel production of documents and email in native format and, noting that a particular format was not requested and that the parties? had consistently produced documents in hard copy or in searchable PDF format, found that only two documents ?arguably might contain metadata that could be relevant? and ordered that those documents be produced, but shifted the costs to the requesting party
Nature of Case: Theft of intellectual property, breach of contract
Electronic Data Involved: Emails, database, ESI
Key Insight: Defendant sought production of a complete copy of a Microsoft Access database utilized by patent?s co-inventor to input his formulas to assess the legitimacy of the claimed conception date. Plaintiff argued the database did not ?maintain metadata like word processing or spreadsheet programs do? and also that the database, maintained by a third-party, contained proprietary information of non-parties. Defendant maintained the stipulated protective order would protect the third-party proprietary information and that Plaintiffs had not argued that they would incur ?undue hardship or expense? in producing the database with its metadata. The court granted Defendant?s motion to compel production of the database and metadata for forensic analysis.
Nature of Case: Patent infringement
Electronic Data Involved: Microsoft Access Database
Key Insight: Magistrate judge denied defendant?s motion to compel plaintiff to organize and label its document production ?so that it corresponds to the categories in the request? because the discovery documents were immediately available for inspection at plaintiff counsel?s office in electronic format already organized, identifiable, and searchable by claim number; defendants needing only to execute claims number searches to identify documents. Thus, the court concluded that unless and until an inspection is undertaken and shown to be unduly burdensome, the plaintiff?s offer to permit inspection of database comports with ?both the letter and spirit of rule 34.?
Electronic Data Involved: ESI
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