FRCP 34(b) Procedure or Format – Page 13

Adams v. Allianceone, Inc., No. 08-CV-248-JAH (WVG), 2011 WL 2066617 (S.D. Cal. May 25, 2011)

Dec 01 2011

Key Insight: Court denied motion for sanctions for defendants? production in PDF format where plaintiff?s failed to request a specific format of production; where PDF format was ?reasonably usable? in light of the problems with the native format; where Rule 34 advisory committee notes allow for the translation of electronic data to allow production in a reasonably usable format; where there was ?insufficient evidence? to suggest that the data was converted from its native format to hinder plaintiff?s search ability; and where defendant ended up producing the native data to plaintiff?s satisfaction after conferring

Electronic Data Involved: ESI

Innis Arden Golf Club, Inc. v. O?Brien & Gere Eng?rs. Inc., No. CV106006581, 2011 WL 6117908 (Conn. Super. Ct. Nov. 18, 2011)

Dec 01 2011

Key Insight: Where plaintiff produced 64,350 pages of documents in electronic form without identifying what request the documents were responsive to, the court ordered the parties to cooperate to prepare a load file to assist in defendant?s review and ordered defendant to bear the cost and, where the court agreed with defendants that metadata was an ?important source for the defendants as part of the orderly production? of ESI, the court ordered the parties to cooperate ?in completing the metadata requested by the defendants in an appropriate format? and that ?outside costs, if any, other than copying costs for the metadata [would] also be borne by the defendants?

Electronic Data Involved: ESI, metadata

Seven Seas Cruises S. DE R.L. v. V. Ships Leisure Sam, 2011 WL 181439 (S.D. Fla. Jan. 19, 2011)

Dec 01 2011

Key Insight: Where plaintiffs challenged the sufficiency of defendants? search, including whether defendants had used the agreed-upon search terms, and the format of defendant?s production, and where plaintiff specifically pointed to an email that should have been produced but was not, the court noted plaintiffs? concession that defendants? search methodology did not result in plaintiff receiving fewer documents and that they had been able to use the information produced, despite their arguments regarding format, but ?nevertheless concluded? that defendants should provide additional information and ordered the submission of an affidavit detailing defendants? search efforts; the court concluded that the dispute in this case was ?caused primarily by the parties? mutual failure to communicate and work together in good faith to resolve the areas of dispute? and counseled that in future the parties should more clearly specify the way in which discovery will be conducted and, if they cannot agree, should seek judicial assistance

Nature of Case: Suit for damages arising from failure to provide proper ship management

Electronic Data Involved: ESI

E.E.O.C. v. DHL Express, No. 10 C 6139, 2011 WL 6825516 (N.D. Ill. Dec. 28, 2011)

Dec 01 2011

Key Insight: Where DHL produced ?28,000 spreadsheets worth of information? with an index containing metadata for each spreadsheet and any emails to which the spreadsheets were attached but where plaintiff nonetheless claimed that the burden of sifting through the spreadsheets was unduly onerous and sought to compel production of information to identify each spreadsheet and that defendant organize them according to request, the court noted its authority under Rule 34 to impose requirements ?different from those in the rule? and ordered defendant to identify which request each spreadsheet or group of spreadsheets was responsive to and to provide an explanation for spreadsheets not attached to an email

Electronic Data Involved: Spreadsheets

Morris v Scenera Research LLC, No. 09 CVS 19678, 2011 WL 3808544 (N.C. Super. Ct. Aug. 26, 2011)

Dec 01 2011

Key Insight: Court upheld clawback agreement between the parties which held that inadvertent production would not result in waiver; where parties entered into 26(f) agreement regarding what metadata need be produced but where plaintiff moved to compel production of additional fields because those provided did not allow him to search effectively or identify the source of particular documents, the court entered into an extensive analysis of the ?form? and ?organization? requirements in Rule 34 and withheld ruling until defendant could provide evidence regarding the burden of providing an index that could allow identification of the source of each document

Nature of Case: State employment claims

Electronic Data Involved: ESI, metadata

City of Colton v. Amer. Promotional Events, Inc., 277 F.R.D. 578 (C.D. Cal. Oct. 13, 2011)

Dec 01 2011

Key Insight: Affirming the order of the magistrate judge, the Court found that Rule 34 production requirements applied equally to hard copy and ESI, that the Case Management Order did not exempt the parties from the requirements of Rule 34, and that where defendants did not produce ESI as maintained in the usual course of business, they would be required to label their productions to correspond to the categories in the request, or, as offered by plaintiff, could re-produce ESI in native format in lieu of labeling

Nature of Case: CERCLA, RCRA – seeking cleanup costs from owner of property formerly used as ammunition storage

Electronic Data Involved: ESI

Corbello v. Devito, 2010 WL 4703519 (D. Nev. Nov. 12, 2010); 2011 WL 1466605 (D. Nev. Apr. 15, 2011)

Dec 01 2011

Key Insight: Where defendants had already produced ?hundreds of scripts and draft scripts? in .pdf format, a hardcopy notebook of page changes to the script, and the only two comments to the script made using the ?notes function? the Screenwriter software at issue, the court found that the production of scripts and drafts in .pdf was a reasonably usable format and that ?additional production of [the] materials in native format would be an unnecessary burden and unjustifiable waste of time and resources? and denied plaintiffs? motion to compel; in second opinion, court reconsidered prior approval or production in .pdf format and ordered production in native format

Electronic Data Involved: Native production of all changes made to the relevant script for all productions

Brinckerhoff v. Town of Paradise, 2010 WL 4806966 (E.D. Cal. Nov. 18, 2010)

Dec 01 2010

Key Insight: Citing plaintiff?s failure to raise the issue of electronic discovery at the discovery conference, her failure to request ESI in discovery, and the lack of hardship in reviewing hard copy produced by defendants, the court generally denied plaintiff?s request to compel production of ESI in native format but, as to an evaluation of plaintiff, the court compelled the production of metadata and reasoned that the revelation of the date created and whether it was modified could be pivotal for the plaintiff

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

Team Mktg. USA, Corp. v. Energy Brands, Inc., 913 N.Y.S.2d 874 (N.Y. Sup. Ct. 2010)

Dec 01 2010

Key Insight: Where plaintiff requested that defendant produce documents ?in the form and in the same order which in each file in which they existed prior to production? and where defendant then produced email in PDF format, the court denied plaintiff?s request to compel reproduction of the emails upon finding that plaintiff?s request did not constitute a request for a particular format and because the documents had already been produced in ?a reasonably usable format?

Electronic Data Involved: Emails

Moore v. Shands Jacksonville Med. Ctr., 2010 WL 5137417 (M.D. Fla. Dec. 10, 2010)

Dec 01 2010

Key Insight: Where, absent specification of the format of production from either party, defendant produced video surveillance footage in what it considered a ?reasonably usable? format which required particular software for viewing, and where that software was available for free download on the internet, the court indicated it was ?not sympathetic? to plaintiff?s claims of undue burden as to the downloading the software and found that defendants had produced the video in a reasonably usable form

Nature of Case: Employment discrimination

Electronic Data Involved: Surveillance footage

Tag:FRCP 34(b) Procedure or Format