Key Insight: Although ?[t]he rules do not require a party to produce ESI in the form most helpful to the opposing party[,]? the court ordered Defendant to produce additional discovery in TIFF format and to produce the metadata for all documents already produced (in PDF format)
Nature of Case: Class action
Electronic Data Involved: ESI (.xls, proprietary format)
Key Insight: Where Plaintiff alleged it could not access the data produced by defendant?even with the use of specialized software provided by Defendant and the assistance of a third party vendor?and refused the options provided by defendant insisting instead that defendant must re-load the date to ensure it was not corrupted, the court noted Plaintiff?s failure to timely seek a solution to the discovery problems or to mitigate the difficulties by pursuing any of the offered remedial measures and denied the motion to compel access to the at-issue information
Nature of Case: Patent infringement
Electronic Data Involved: ESI (“operational data”)
Key Insight: Addressing Plaintiff?s Motion to Compel, court overruled Defendant?s objection to producing ESI in native format with metadata where Defendant failed to indicate in its objection the form of production it intended to use instead and did not support its objection by explaining why it could not or should not be required to produce as requested and, in fact, admitted that it had previously produced material in native format; court denied without prejudice Plaintiff?s motion to compel responses outlining Defendant?s search efforts (sometimes called “discovery on discovery”) where Plaintiff?s counsel failed to confer with Defense counsel prior to bringing the motion, as is required by the District of Kansas? ESI Guidelines
Nature of Case: Title VII: racial discrimination, retaliatory conduct
Electronic Data Involved: ESI
Key Insight: Where Defendant initially produced material safety data sheets in TIFF format and later in hard copy but Plaintiff complained they were ?extremely difficult? to utilize because of the number of duplicates, the ?absence of organization? and the small font size (despite having relied upon the productions for purposes of summary judgment), court was swayed by Plaintiff?s expert?s articulation regarding the lack of burden rather than Defendant?s vague attestations of the burden of reproduction and, reasoning that Plaintiff had not produced all of the information requested in its initial production (e.g., certain data fields from the database in which the material safety data sheets were maintained) and that the prior productions were in a form that degraded searchability, ordered reproduction of the requested information i.e., ?all data and information maintained in [Defendant?s] databases relating to the MSDS and all data inputted by [Defendant] concerning the same, in an electronic, organized and usable format.?
Nature of Case: FLSA
Electronic Data Involved: Contents of database
Key Insight: Where defendant objected to Plaintiffs? requests for production on grounds of relevance, but nevertheless produced the information in the format in which it was ordinarily maintained (Microsoft SQL Server format) and also provided Plaintiffs with the means to access the data in a ?parallel environment? and then later in an excel format for a limited period of time, indicating that the earlier periods of time were not reasonably accessible, and where Plaintiffs ultimately ?did not disagree? that the information was not as useful as they had thought, the court found the rest of the requested information (from the earlier time periods) was not reasonably accessible and that the burden of production outweighed its likely benefit and denied the motion to compel unless good cause could be shown
Electronic Data Involved: Archived ?SCADA? data from a Microsoft SQL Server format
Key Insight: Where the parties agreed to a Joint Discovery Plan requiring production in PDF unless metadata was requested and that in such cases the parties should meet and confer to discuss the format of production in good faith and where Defendant made such a request and sought to confer but was ignored, court ordered Plaintiff to re-produce emails with associated metadata at its own expense
Electronic Data Involved: Emails and metadata
Key Insight: Court addressed 3rd party?s motion to quash allegedly burdensome subpoena and to preclude further production or to require the defendant to pay for the non-party?s expenses and found that the defendant had demonstrated its needs for ?most of the categories of documents? but also concluded that the 3rd party?s objections should be sustained in part and modified the subpoena?s requests to reduce the burden; Court rejected arguments that 3rd party?s lack of a ?dedicated IT specialist?, use of cloud based email and need to rely on employees? and or hire a vendor establish burden; court also found that ?by producing the documents in non-readable PDF format without the metadata specified by the subpoena?s instructions, and failing to serve any written objections to those instructions, p202 failed to comply with Rule 45(a)(1)(C) and 45(e)(1)?s requirement to comply with the subpoena?s specification of a form for producing ESI? and ordered re-production in accordance with the subpoena?s instruction
Electronic Data Involved: ESI
Key Insight: Addressing Plaintiff?s motion to add custodians, the court granted the motion, in part, but declined to compel the addition of high-level executives absent a showing that they had ?unique or personal knowledge of the subject matter that warrants their information?; Court found that the current ?search criteria adequately ensure[d]? the production of relevant documents and declined Plaintiff?s request for additional search terms except the phrase ?consent order? where confusion existed as to the existence of ?other? consent orders relevant to the case; where plaintiff was unsatisfied with Defendant?s production of more than 46,000 documents ?without providing any indication as to which documents are responsive to which of Plaintiff?s fifty-eight (58 ) enumerated requests,? but where the defendant represented that their production was ?fully text-searchable and contain[s] metadata permitting Plaintiff to identify, among other things, the custodians of the document, recipients, date and other key information,? the court found that the production was ?in a reasonably useable form or forms and/or the production is searchable, sortable and paired with relevant metadata? and thus was compliant with the parties? ESI agreement and with Rule 34
Nature of Case: Wrongful discharge; Age Discrimination; Dodd Frank; Sarbanes-Oxley
Electronic Data Involved: ESI
Key Insight: Where requesting party failed to request a specific format of production and the responding party therefore produced in PDFs, the court reasoned that Defendant failed to assert that it could not produce the information as it was originally kept and that Plaintiff should not be at a ?disadvantage by having to slog through thousands of pages of records in unusable form? and granted Plaintiff?s motion to compel production of the at-issue medical records in the manner in which they were maintained
Electronic Data Involved: Electronically stored medical records
Key Insight: Court denied Plaintiffs? motion to compel re-production of time records in .xls format where Defendant first produced the records in a searchable PDF format, generally found by courts to be ?reasonably usable,? and where the parties? discovery plan contemplated the possible reproduction of certain information upon a showing of good cause in situations where the data or metadata was not adequately captured, but where the court found that Plaintiffs desire to manipulate the documents with greater ease did not constitute good cause; court stated: ?Such difficulties would have been a good reason for Plaintiffs to specify a particular format in their request for production, but are not sufficient ?good cause? to force Defendant to reformat and produce data which it has already provided.?
Nature of Case: FLSA Collective Action
Electronic Data Involved: Electronic Time Clock Records
Copyright © 2022, K&L Gates LLP. All Rights Reserved.