Format Of Production – Page 9 – Electronic Discovery Law

Themis Bar Review, LLC v. Kaplan, Inc., No. 14CV208-L (BLM), 2015 WL 3397877 (S.D. Cal. May 26, 2015)

Dec 01 2015

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

Andra Grp. LP v. JDA Software Grp., LLC, No. 3:15-mc-K-BN, 2015 WL 1636602 (N.D. Tex. April 13, 2015)

Dec 01 2015

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

Lutzeier v. Citigroup Inc., No. 4:14-cv-00183-RLW, 2015 WL 430196 (E.D. Mo. Feb 2, 2015)

Dec 01 2015

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

Osborne v. Billings Clinic, No. CV 14-126-BLG-SPW, 2015 WL 1412626 (D. Mont. Mar. 26, 2015)

Dec 01 2015

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

Davenport v. Charter Comm?cns., LLC, No. 2015 WL 1286372 (E.D. Mo. Mar. 20, 2015)

Dec 01 2015

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

Nationwide Mut. Fire Ins. Co. v. Kelt, Inc., No. 6:14-cv-740-Orl-41TBS, 2015 WL 1470971 (M.D. Fla. Mar. 31, 2015)

Dec 01 2015

Key Insight: Where Plaintiff produced documents ?en masse? without any indication of what was produced or what request the documents were responsive to and claimed that they were produced as kept in the usual course of business and thus in compliance with Rule 34, the court reasoned that a party who produces documents as kept in the usual course has the burden of proving they were in fact produced in that manner and that a party may not wait until a motion to compel is filed to provide that information and concluded that Plaintiff had not complied with the requirements of Rule 34(b)(2)(E)(i) and ordered that Plaintiff must identify by Bates number which documents were responsive to each request

Electronic Data Involved: ESI

Enargy Power (Shenzhen) Co. v. Xiaolong Wang, No. 13-11348-DJC, 2014 WL 4687542 (D. Mass. Sep. 17, 2014)

Dec 01 2014

Key Insight: Where defendants maintained hard copy business records that they produced electronically on CD-ROM, but did not make a sufficient showing that documents were produced as they were kept in the usual course of business since defendants provided no details regarding where and how documents were maintained, court ordered defendants to organize and label documents to correspond to the categories of documents requested by plaintiffs; court further ruled that defendants need not ?affirm that their document searches and productions are complete without qualification, or that no additional responsive documents exist,? but directed defendants, once they had completed their search and produced all documents they intended to produce, to confirm their efforts in locating responsive documents were complete and whether they were withholding any documents

Nature of Case: Violations of Computer Fraud & Abuse Act, conversion, misappropriation of trade secrets and breach of fiduciary duty

Electronic Data Involved: Hard copy documents scanned and produced on CD-ROM

Crawford v. City of New London, No. 3:11CV1371 (JBA), 2014 WL 2168430 (D. Conn. May 23, 2014)

Dec 01 2014

Key Insight: Spoliation sanctions were not appropriate where original footage on hard drive was recorded over in compliance with standard retention procedures, because: (1) defendants preserved a DVD copy of the video per standard practice, (2) plaintiff failed to present any evidence that the copy was of a lesser quality than the original, other than to allege that it was stored in a format that was inconvenient for enhancement, (3) defendants did not have control over the original security footage nor were they involved in its destruction, (4) recording over original footage occurred long before duty to preserve was triggered, and (5) there was no evidence beyond the fact of destruction itself that would support an inference that the original recording was unfavorable to defendants

Nature of Case: Excessive force claims in connection with plaintiff’s arrest

Electronic Data Involved: Hard drive containing original surveillance footage of plaintiff’s arrest

AKH Co., Inc. v. Universal Underwriters Ins. Co., No. 13-2003-JAR-KGG, 2014 WL 2760860 (D. Kan. June 18, 2014)

Dec 01 2014

Key Insight: Where plaintiff requested that documents be produced in native format but defendant produced documents in both hard copy format and in a few very large PDF files, court found that defendant had adequately explained why the documents were not produced in their native format (proprietary nature of certain software used by defendant, defendant’s right to withhold privileged information, need to limit production of irrelevant information regarding unrelated policyholders, the added costs of re-producing information already submitted to plaintiff in converted PDF format), and ruled that, absent a need for metadata as to a particular document, it would not require defendant to re-produce the information

Nature of Case: Insurance coverage and settlement of trademark dispute

Electronic Data Involved: ESI

FDIC v. Baldini, No. 1:12-7050, 2014 WL 1302479 (S.D. W. Va. Mar. 28, 2014)

Dec 01 2014

Key Insight: Court denied plaintiff’s motion for protective order, rejecting plaintiff’s proposed protocol that would require defendants to supply search terms (which plaintiff would then apply to the ESI) and require defendants to pay ESI copying costs; court ordered plaintiff to fashion initial set of search terms and work with defendants to reach agreement on search terms to be used, and set out protocol to be followed by the parties for the production

Nature of Case: Breach of fiduciary duties, negligence

Electronic Data Involved: ESI

Tag:Format Of Production