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: Where Plaintiff requested production of ESI in native format and defendant failed to object (thus waiving any objection) but produced the requested data as scanned .pdfs and argued that the native format would contain the same information but would be more difficult to understand (because of shortcut codes, etc.), the court reasoned that plaintiff nevertheless requested native format to no objection and ordered that the native format be produced
Nature of Case: Fair Credit Reporting Act
Electronic Data Involved: ESI, database
Key Insight: Trial court did not err in awarding plaintiffs their attorneys’ fees and costs incurred after successfully opposing Sallie Mae’s motion to quash subpoena, as Sallie Mae lacked substantial justification for its motion given that plaintiffs did not seek to have Sallie Mae extract and compile information from paper files but only asked that Sallie Mae extract ESI from an existing database, plaintiffs never expressed an unwillingness to pay for the reasonable cost of doing so but repeatedly asked for a cost estimate, and Sallie Mae ignored plaintiffs’ requests and did not provide a cost estimate until after its motion to quash had been denied and plaintiffs’ request for attorneys’ fees was being heard
Nature of Case: 1,034 former students asserted claims of fraud, breach of contract and violations of consumer laws
Electronic Data Involved: Loan records maintained by Sallie Mae
Key Insight: Where plaintiff’s medical records were previously provided in a PDF file organized in reverse chronological order and plaintiffs agreed to provide metadata contained in the audit trail, and plaintiff then sought production of the records either in their native format with the required software reader or broken down into “searchable headings,” court found that defendants had demonstrated they would suffer substantial hardship and/or expense in complying with plaintiff?s request to provide the records in their native format, and that such burden outweighed plaintiff?s interests in receiving the records in native format
Nature of Case: Claims arising from alleged assault by correctional officers
Electronic Data Involved: Plaintiff’s electronically stored medical records
Key Insight: Court rejected plaintiff’s complaints regarding format of defendant’s production of documents, because plaintiff failed to make any Rule 34(b)(2)(B) ESI specification in its discovery requests and defendant’s production of scanned images on OCR readable disc was a reasonably usable form; court ordered defendant to explain its document naming and numbering system to the extent it had not already done so, but denied any additional logistical relief, stating: ?Whatever burden XL and its counsel face in reviewing these materials that they themselves have requested is rightfully borne by them.?
Nature of Case: Insurance coverage
Electronic Data Involved: Database of more than 808,000 documents consisting of more than four million pages
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