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Case Law

Court Denies Plaintiff’s Motion to Compel the Defendant to Assist with Access to its Data: eDiscovery Case Law

In SFP Works, LLC v. Buffalo Armory, LLC, No. 14-13575 (E.D. Mich., Nov. 19, 2015), Michigan Chief District Judge Gerald E. Rosen, agreeing with the defendant that the plaintiff’s motion was untimely, and that Plaintiff “unreasonably declined” several options proposed by the defendant for accessing the data that was produced to it by the defendant, denied the plaintiff’s motion to compel access to operational data.

Case Background

In this patent infringement case, the defendant produced data to the plaintiff in February 2015, acknowledging in an accompanying letter that it was producing its data files “in native format, the way they are kept in the ordinary course of business,” and that the plaintiff would need to obtain specialized third-party software in order to view the data in these files.  Over a month later, the sent a letter to the defendant, indicating that a license for the software needed to view the data files (along with the training and technical support) would cost approximately $6,000 and (ii) requested the defendant to provide hard-copy printouts of the pertinent data, as it had already done for certain runs of its accused process.  In response, the defendant offered to provide printouts if the plaintiff covered the costs for those printouts and also provided the plaintiff with a copy of free software it had obtained from a third-party vendor for viewing the data files it had produced back in February.  Problem solved, right?  Not so fast.

Unfortunately, the plaintiff continued to encounter difficulties accessing the data and suggested that the data provided by the defendant was “corrupt in some way,” or that the viewing software obtained from the third-party vendor was “not suitable” for gaining access to this data.  The third-party vendor indicated that the plaintiff had used up its free technical support, and indicated that it would have to spend several hundred dollars or more for additional support.

In June, the defendant proposed three solution alternatives to the plaintiff: buy a license to the full software package that the defendant had used to generate the underlying data, pay the “nominal cost” sought by the third-party vendor to for continued software troubleshooting or identify up to ten dates for which the defendant could provide hard-copy printouts of data generated through its use of the accused process.  The plaintiff rejected all three alternatives, so, on June 10, the defendant responded, stating that “[t]here is simply nothing more we can do and nothing more the Federal Rules require us to do.”  Twenty days later, the plaintiff filed its motion to compel access to operational data.

Judge’s Ruling

With regard to the timeliness of the motion, Judge Rosen stated:

“As this lengthy procedural history makes clear, the present discovery dispute ripened, at the very latest, on June 10, 2015. By that date, Plaintiff had expressly rejected each of Defendant’s proposals for resolving this dispute. In addition, Plaintiff was fully aware by that date (i) that it remained unable to review and analyze the data produced by Defendant, and (ii) that Defendant did not intend to take any further steps to assist Plaintiff in overcoming this technical hurdle. Yet, even assuming that the present dispute were deemed to have arisen on June 10, rather than in late February when Defendant produced the data giving rise to this dispute, Plaintiff nonetheless failed to seek the Court’s intervention in this dispute within fourteen days after Defendant explicitly advised Plaintiff on June 10 that it would take no further action to assist Plaintiff in gaining access to the data it had previously provided. Instead, Plaintiff first brought this dispute to the Court’s attention twenty days later, when it filed a June 30, 2015 motion to compel Defendant to implement one or more measures designed to ensure Plaintiff’s access to Defendant’s data.  Under the terms of the Court’s scheduling order, this motion was filed too late to secure the Court’s intervention in the parties’ dispute.”

Judge Rosen also rejected the plaintiff’s argument that the matter before the court was not a discovery dispute and noted that the plaintiff requested that it be granted access to the defendant’s own software at its facility in Buffalo, New York to view the data and the defendant offered that solution the day after the plaintiff filed its motion, making the motion unnecessary.  As a result, Judge Rosen denied the plaintiff’s motion.

So, what do you think?  Should the defendant have been required to do more to make the data accessible?  Or did it do enough?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Plaintiff’s Request for In Camera Review of Defendants’ Privileged Emails: eDiscovery Case Law

In Armouth International, Inc. v. Dollar General Corp. et. al., No. 14-0567 (M.D. Tenn., November 2, 2015), Tennessee Magistrate Judge Barbara D. Holmes, calling the plaintiff’s request a “fishing expedition”, denied the plaintiff’s expedited motion to compel, requesting that the defendants be required to produce emails that were either withheld or redacted based on claims of attorney-client privilege for an in camera review of the emails by the Court to confirm the privilege claims.

Case Background

In this dispute between a discount retailer and one of its suppliers over failure to pay invoices and cancelled orders, the defendants withheld certain email communications and redacted other emails on the basis of attorney-client privilege.  The disputed emails related to a decision made by the defendants’ Assistant General Counsel (AGC) to release a hold (that was originally placed by the defendants because the merchandise failed to conform to the labeling standards set forth by the Federal Trade Commission) on merchandise that was to be distributed to the defendants’ retail stores for sale.  The defendant contended that the AGC’s decision was purely legal and involved, at most, minor business considerations.

Citing the AGC’s role as “head of the Compliance Department” and “supervisor to the Senior Director of Global Sourcing”, the plaintiff argued that the AGC was acting with his “business hat,” as opposed to his “legal hat,” and that the emails withheld and redacted by the defendant involving the AGC were therefore not subject to the attorney-client privilege.  As a result, the plaintiff filed an expedited motion to compel, requesting that the defendants be required to produce all 52 of the communications withheld or redacted by the defendant for an in camera review by the Court to determine which emails are protected by the privilege.

Judge’s Ruling

Referencing the defendant’s contention that the decision to release the hold was made by the AGC precisely because it required the legal opinion of an attorney, Judge Holmes stated:

“The Court is not persuaded that this series of events, nor Armouth’s unsupported speculation, forms a ‘factual basis adequate to support a good faith belief by a reasonable person’ that an in camera review of the emails contained in Dollar General’s privilege log would reveal communications involving business advice unprotected by the attorney-client privilege. Armouth is unwilling to believe that Mr. Stephenson was acting in a legal capacity when the decision was made to release the hold on its merchandise, despite the fact that the hold was originally implemented due to legal considerations, i.e. the failure of Armouth’s merchandise to comply with federal law with respect to labeling standards.”

Continuing, Judge Holmes stated: “The Court agrees with Dollar General that Armouth’s blanket request for review of the entire privilege log suggests a ‘fishing expedition,’ as opposed to a specific request to discover relevant information. The Court also notes that granting Armouth’s motion, which broadly requests a review of all of Dollar General’s emails withheld based on attorney-client privilege, would open the floodgates and allow any party to demand an in camera review of the opposing party’s attorney-client communications so long as the former expressed an unfounded suspicion that counsel for the latter had misrepresented the basis for the privilege claim. For the these reasons, Armouth’s motion is DENIED.”

So, what do you think?  Should the court have allowed for the in camera review?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Grants Defendants’ Motion to Exclude Plaintiff’s Use of Spoliation Evidence: eDiscovery Case Law

In West v. Talton, No. 13-338 (M.D. Ga., Nov. 2, 2015), Georgia District Judge C. Ashley Royal granted the defendants’ Motion in Limine to exclude all evidence and argument regarding spoliation, reserving its ruling on the remaining issues in the Motion in Limine.

Case Background

In this employment discrimination case, during a deposition of defendants’ representatives in June 2014, the plaintiff discovered that the defendants failed to search and preserve some e-mail accounts as requested during discovery.  Based on this information, the Court granted the plaintiff’s motion to reopen discovery in September 2014. During the additional discovery period, the plaintiff discovered one individual defendant’s email account was deleted shortly after his resignation and backup tapes of the defendants’ server were written over as part of an automatic backup performed every six months which erased any backup of his email account.

Ultimately, the defendants were still able to retrieve the departed employee’s old computer and hire a third-party company to preserve and search the hard drive, from which they were eventually able to produce over a thousand documents and emails.  Nonetheless, the plaintiff sought a spoliation instruction to the jury regarding the deletion of emails, or in the alternative, an opportunity to present evidence of the defendants’ failure to preserve emails to the jury, claiming that he would have discovered more emails to support his claim had the defendants preserved the backup tapes and Holt’s email account.  The defendants argued that this evidence should be excluded because the emails were not deleted in bad faith, and they still retrieved the employee’s hard drive, which included the evidence the plaintiff requested.

Judge’s Ruling

After conducted a hearing to consider the arguments, Judge Royal stated:

“Based on the evidence presented during the hearing, it is not clear that Defendants’ failure to preserve Holt’s email account and the server’s backup tapes was a malicious act or done in bad faith. On the contrary, it appears Holt’s email was deleted pursuant to a routine procedure to delete an employee’s email account shortly after the employee left the Sheriff’s Department and to rewrite over the backup tapes of the server every six months. Plaintiff contends this procedure was more than just “mere negligence” because Defendants were on notice after receiving an EEOC complaint. However, even assuming Plaintiff’s contention is true, it is completely speculative Plaintiff was prejudiced by these events in any way. Defendants hired an outside company to restore Holt’s hard drive and recovered over 70,000 documents from the hard drive. The search terms used were broad and extensive and produced 1,205 hits. Indeed, Plaintiff received more information based on these search terms than what was originally requested during discovery. Further, the third-party company stated there was no evidence on the hard drive of any ‘mass destruction’ or ‘wiping.’”

Judge Royal rejected the plaintiff’s use of Woodward v. Wal-Mart Stores East, LP as an analogous case, noting in that case, the plaintiff did not have other evidence to replace a lost video tape.  Stating that “[t]he Court finds the danger of confusing the issues and misleading the jury outweighs the probative value of such evidence”, Judge Royal granted the defendants’ Motion in Limine to exclude all evidence and argument regarding spoliation.

So, what do you think?  Should the court have allowed for a spoliation instruction to the jury or was the defendant’s efforts to provide ESI for the departed employee sufficient?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Defendant Ordered to Produce Unredacted Versions of Agreements and Shipment Data: eDiscovery Case Law

In Mervyn v. Atlas Van Lines, Inc. et. al., No. 13-3587 (N.D. Ill., Oct. 23, 2015), Illinois Magistrate Judge Susan E. Cox granted the plaintiff’s motion to compel the defendants to produce unredacted owner-operator agreements and shipment data, rejecting the defendants’ argument that producing both would be an undue burden.

Case Background

In this dispute between a shipping company and an independent owner-operator over compensation calculations, the plaintiff requested certain owner-operator lease agreements (known as “PVOs”) from the defendants to support its class claims.  After the court entered an order directing the parties to hold an ESI liaison meeting to resolve the discovery issues, the defendants produced 18 PVOs with the names of the owner-operators redacted, stating that the sample of PVOs demonstrated that the contracts all differ greatly and showed insufficient commonality or typicality among the owner-operators to adequately define a workable class.  The defendants refused to produce unredacted versions of the PVOs, expressing concern that the plaintiff was likely to misuse the information it gained through discovery to bring additional claims or lawsuits against the defendant.

The plaintiff also requested specific shipping data related to a certain time period in “usable electronic format”, to which the defendants objected, indicating that database searching to provide that information would require the defendants to spend two weeks writing a “script” and that the request was beyond the scope of discovery as envisioned by the Federal Rules of Civil Procedure because it required them to create a new document.  In response, the plaintiff filed a Motion to Compel both the unredacted PVOs and the shipping data in the requested format.

Judge’s Ruling

Finding that the defendants claims regarding misuse of the owner-operators’ names to be “[b]aseless”, that the owner-operator names were relevant to the case and that producing additional PVOs necessary to determine issues related to class certification would not create an undue burden on the defendants, Judge Cox found that “Atlas has failed to show any threat of misuse and is incorrect that the names are irrelevant, thereby mooting its argument that redaction would be unduly burdensome”.

As for the request for shipping data in a particular format, Judge Cox cited Apple v Samsung to illustrate that requiring a party to query an existing database to produce reports for opposing parties is not the same as requiring the creation of a new document.  Finding that the argument that the plaintiff’s request is outside the scope of Rule 34 was unfounded and that the plaintiff “needs this data for Plaintiff’s expert to determine whether, and to what extent, the owner-operators’ in the putative class were damaged by the terms in the PVOs”, Judge Cox granted the plaintiff’s motion to compel the defendants to produce unredacted owner-operator agreements and the shipment data in the format requested.

So, what do you think?  Is querying a database to produce information creation of a new document or does it fall within the scope of Rule 34?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Thanksgiving Case Law Pop Quiz Answers!: eDiscovery Case Law

It’s Thanksgiving week! Personally, I have a lot to be thankful for, including a successful year so far at my company CloudNine and (most of all) my family, including my wife Paige and my kids Kiley and Carter (and our dog Brooke too).  Yesterday, we gave you a pop quiz for the eDiscovery case law that we’ve covered recently. If you’re reading the blog each day, these questions should be easy! Let’s see how you did. Here are the answers.

1. In which case was the plaintiff sanctioned twice with adverse inference instructions for tampering with ESI in discovery, without having the case dismissed on either occasion?

A. HMS Holdings Corp. v. Arendt, et al.

B. Electrified Discounters, Inc. v. MI Technologies, Inc. et al.

C. Themis Bar Review, LLC v. Kaplan, Inc.

D. Lynn M. Johnson v. BAE Systems, Inc. et. al.

2. In which case was the plaintiff ordered to pay for the cost to produce files in native format after the plaintiff originally produced unsearchable PDF images without metadata?

A. HMS Holdings Corp. v. Arendt, et al.

B. Electrified Discounters, Inc. v. MI Technologies, Inc. et al.

C. Themis Bar Review, LLC v. Kaplan, Inc.

D. Lynn M. Johnson v. BAE Systems, Inc. et. al.

3. In which case was the plaintiff ordered to image its sources of ESI and compelled to produce ESI responsive to twenty disputed discovery requests?

A. HMS Holdings Corp. v. Arendt, et al.

B. Electrified Discounters, Inc. v. MI Technologies, Inc. et al.

C. Themis Bar Review, LLC v. Kaplan, Inc.

D. Lynn M. Johnson v. BAE Systems, Inc. et. al.

4. In which case were the two attorney defendants sanctioned with “the strongest possible adverse inference” for egregious spoliation of ESI?

A. HMS Holdings Corp. v. Arendt, et al.

B. Electrified Discounters, Inc. v. MI Technologies, Inc. et al.

C. Themis Bar Review, LLC v. Kaplan, Inc.

D. Lynn M. Johnson v. BAE Systems, Inc. et. al.

5. Which of the following cases resulted in sanctions being recommended against the defendant?

A. Malibu Media, LLC v. Tashiro

B. Malibu Media, LLC v. Michael Harrison

C. Sanctions Were Recommended in Both Cases

D. Sanctions Were Recommended in Neither Case

6. In which case did the judge grant the plaintiff’s motion for a deposition of a Rule 30(b)(6) witness on the defendant’s self-collection methodology?

A. Giuliani v. Springfield Township, et al.

B. Burd v. Ford Motor Co.

C. Rio Tinto Plc v. Vale S.A.

D. GPNE Corp. v. Apple, Inc.

7. In which case did the court deny the plaintiff’s request for spoliation sanctions, citing a lack of motive or intent?

A. Giuliani v. Springfield Township, et al.

B. Burd v. Ford Motor Co.

C. Rio Tinto Plc v. Vale S.A.

D. GPNE Corp. v. Apple, Inc.

8. In which case was a special master assigned to the case to assist with issues concerning Technology-Assisted Review (TAR)?

A. Burd v. Ford Motor Co.

B. Rio Tinto Plc v. Vale S.A.

C. GPNE Corp. v. Apple, Inc.

D. Charvat et. al. v. Valente et. al.

9. In which case did the court deny the plaintiff’s request for spoliation sanctions against the defendant for routine deletion of files of departed employees?

A. Burd v. Ford Motor Co.

B. Rio Tinto Plc v. Vale S.A.

C. GPNE Corp. v. Apple, Inc.

D. Charvat et. al. v. Valente et. al.

10. In which case did the judge grant the defendant’s motion to file under seal specific line items from third-party eDiscovery vendor invoices?

A. Burd v. Ford Motor Co.

B. Rio Tinto Plc v. Vale S.A.

C. GPNE Corp. v. Apple, Inc.

D. Charvat et. al. v. Valente et. al.

As always, please let us know if you have questions or comments, or if there are specific topics you’d like to see covered.

eDiscovery Daily will resume with new posts next Monday.  Happy Thanksgiving!

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Thanksgiving Case Law Pop Quiz!: eDiscovery Case Law

It’s Thanksgiving week! Personally, I have a lot to be thankful for, including a successful year so far at my company CloudNine and (most of all) my family, including my wife Paige and my kids Kiley and Carter (and our dog Brooke too). With it being a short holiday week, it seems like a perfect opportunity to catch up on cases we’ve covered recently with a case law pop quiz.

If you’re reading the blog each day, these questions should be easy! If not, we’ve provided a link to the post with the answer. We’re that nice. Test your knowledge! Tomorrow, we’ll post the answers for those who don’t know and didn’t look them up.

1. In which case was the plaintiff sanctioned twice with adverse inference instructions for tampering with ESI in discovery, without having the case dismissed on either occasion?

A. HMS Holdings Corp. v. Arendt, et al.

B. Electrified Discounters, Inc. v. MI Technologies, Inc. et al.

C. Themis Bar Review, LLC v. Kaplan, Inc.

D. Lynn M. Johnson v. BAE Systems, Inc. et. al.

2. In which case was the plaintiff ordered to pay for the cost to produce files in native format after the plaintiff originally produced unsearchable PDF images without metadata?

A. HMS Holdings Corp. v. Arendt, et al.

B. Electrified Discounters, Inc. v. MI Technologies, Inc. et al.

C. Themis Bar Review, LLC v. Kaplan, Inc.

D. Lynn M. Johnson v. BAE Systems, Inc. et. al.

3. In which case was the plaintiff ordered to image its sources of ESI and compelled to produce ESI responsive to twenty disputed discovery requests?

A. HMS Holdings Corp. v. Arendt, et al.

B. Electrified Discounters, Inc. v. MI Technologies, Inc. et al.

C. Themis Bar Review, LLC v. Kaplan, Inc.

D. Lynn M. Johnson v. BAE Systems, Inc. et. al.

4. In which case were the two attorney defendants sanctioned with “the strongest possible adverse inference” for egregious spoliation of ESI?

A. HMS Holdings Corp. v. Arendt, et al.

B. Electrified Discounters, Inc. v. MI Technologies, Inc. et al.

C. Themis Bar Review, LLC v. Kaplan, Inc.

D. Lynn M. Johnson v. BAE Systems, Inc. et. al.

5. Which of the following cases resulted in sanctions being recommended against the defendant?

A. Malibu Media, LLC v. Tashiro

B. Malibu Media, LLC v. Michael Harrison

C. Sanctions Were Recommended in Both Cases

D. Sanctions Were Recommended in Neither Case

6. In which case did the judge grant the plaintiff’s motion for a deposition of a Rule 30(b)(6) witness on the defendant’s self-collection methodology?

A. Giuliani v. Springfield Township, et al.

B. Burd v. Ford Motor Co.

C. Rio Tinto Plc v. Vale S.A.

D. GPNE Corp. v. Apple, Inc.

7. In which case did the court deny the plaintiff’s request for spoliation sanctions, citing a lack of motive or intent?

A. Giuliani v. Springfield Township, et al.

B. Burd v. Ford Motor Co.

C. Rio Tinto Plc v. Vale S.A.

D. GPNE Corp. v. Apple, Inc.

8. In which case was a special master assigned to the case to assist with issues concerning Technology-Assisted Review (TAR)?

A. Burd v. Ford Motor Co.

B. Rio Tinto Plc v. Vale S.A.

C. GPNE Corp. v. Apple, Inc.

D. Charvat et. al. v. Valente et. al.

9. In which case did the court deny the plaintiff’s request for spoliation sanctions against the defendant for routine deletion of files of departed employees?

A. Burd v. Ford Motor Co.

B. Rio Tinto Plc v. Vale S.A.

C. GPNE Corp. v. Apple, Inc.

D. Charvat et. al. v. Valente et. al.

10. In which case did the judge grant the defendant’s motion to file under seal specific line items from third-party eDiscovery vendor invoices?

A. Burd v. Ford Motor Co.

B. Rio Tinto Plc v. Vale S.A.

C. GPNE Corp. v. Apple, Inc.

D. Charvat et. al. v. Valente et. al.

As always, please let us know if you have questions or comments, or if there are specific topics you’d like to see covered.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Appellate Court Upholds Ruling to Require Production in Native Format: eDiscovery Case Law

On Monday, we covered a case where the requesting party objected to receiving a native format production by the opposing party instead of TIFF files (go figure).  In today’s case, it was the producing party that objected to providing a native format production.  Here’s the case.

In the case In re State Farm Lloyds, No. 13-14-00616 (Tx. App. Ct., Oct. 28, 2015), the Texas Court of Appeals, finding that the relator failed to meet its burden to support its objection that it could not produce the discovery through reasonable efforts, denied the petition for writ of mandamus filed by the relator in which it contended that the trial court abused its discretion by ordering the production of discovery in native or near-native formats rather than the “reasonably usable” formats it proposed.

Case Background

In this case which involved a homeowner’s insurance claim after hail storm damage, the parties met repeatedly and unsuccessfully to attempt to negotiate a protocol for the production of ESI, causing the real parties to file a motion to “Motion for the Entry of Production Protocol and Motion to Compel Testimony Regarding Technical Information”.  The relators objected, claiming that the real parties’ proposed ESI protocol language would “impose significant burdens” on it to develop (test and implement) unique and burdensome processes just for this case.  The relators also claimed the real parties’ approach was “unsupported under the law”, indicating that “[t]he Texas Legislature did not craft Rule 196.4 [the Texas rule that addresses the procedures that must be followed in seeking the discovery of data or information that exists in electronic or magnetic format] as a mandate for native production”.

The trial court held an evidentiary hearing on the discovery issues at which various witnesses testified (including Craig Ball, who testified on behalf of the real parties that production of the ESI in native and near-native format was both easier and cheaper for the relator than the production of information lacking metadata and that the “reasonably usable” format proposed by the relator was incomplete and lacked essential information.

After the testimony, the trial court granted the real parties’ motion to compel.  The relator filed a petition for writ of mandamus, contending: (1) Texas Rules of Civil Procedure 196.4 and 192.4 allow for the production of ESI in “reasonably usable forms”; and (2) the trial court clearly abused its discretion by entering an order requiring the production of all ESI in specific formats (e.g., “native”) as demanded by real parties and by refusing to allow State Farm to produce ESI in the “reasonably usable” forms it proffered.

Appellate Court Ruling

The court noted that “Under the express terms of the Rule 196.4, the real parties are required to specify the form of production for requested ESI, and State Farm has the obligation to either produce the responsive ESI that is reasonably available to it in the ordinary course of business or to object if it cannot produce the ESI in the requested form through ‘reasonable efforts.’”  Finding that the “real parties have clearly specified the form for production of ESI as specified by our rules and consistent with federal practice”, the appellate court also found that the real parties had presented evidence that “ESI discovery in native and near-native formats is necessary”.  The appellate court also noted that “the record contains evidence that the discovery offered by State Farm as ‘reasonably usable’ lacked numerous categories of information regarding State Farm’s evaluation of the real parties’ claim such as emails, instant messages, captions next to photographs that incorporated the adjuster’s evaluations of the real parties’ damages, and ‘Xactanalysis’ reports on the claim.”

Noting that “State Farm did not provide the trial court with any evidence regarding the estimated cost or expense of producing the ESI data in the requested forms, any evidence regarding the time that it would take to produce the ESI data in the requested forms, or any other estimate of the ‘reasonable expenses of any extraordinary steps required to retrieve and produce the information’”, the Appellate Court determined that “the trial court acted within its discretion in determining that the discovery was not unduly burdensome or that the burden or expense of the discovery outweighed its likely benefit” and denied the petition for writ of mandamus filed by the relator.

So, what do you think?  Should requesting parties always be able to receive native and near-native formats of ESI if they request it?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Defendant’s Motion to Require Plaintiff to Re-Produce Data in a More Usable Format: eDiscovery Case Law

In United States v. Meredith, 3:12-CR-00143-CRS (W.D. Ky. Sept. 22, 2015), Kentucky Senior District Judge Charles R. Simpson, III denied the defendant’s motion to compel production of electronically stored information (ESI) by the plaintiff in a usable format, agreeing that the plaintiff had fulfilled its discovery production obligation pertaining to the manner and format of the ESI.

Case Background

In this criminal matter, the government plaintiff began producing discovery in February 2013 and had produced over 300 GB of data plus additional data in four “imaged” computer hard drives, including:

  • Several DVDs containing emails and documents;
  • Copies of four “imaged” drives from the defendant’s and others’ computers;
  • Two hard drives, one containing extracted emails and documents from those imaged hard drives and another containing records obtained during a search warrant;
  • A thumb drive containing the Forensic Tool Kit Report of two of the imaged hard drives;
  • Audio files of relevant interviews; and
  • Paper documents.

The files were searchable using common applications, such as Microsoft Office.  The plaintiff also provided the defendant with written directions on finding specific documents, a Discovery Index and color-coded Media Review Index, and orally explained how it used search terms in reviewing the documents. Despite that assistance, the defendant brought a motion to compel the plaintiff to provide electronically stored information in a more usable format (requesting professional processing and review of the discovery with “industry standard tools” costing nearly $300,000 to be paid by the plaintiff) or to dismiss the case.

Judge’s Ruling

Noting that there is a “dearth of precedent… suggesting what constitutes sufficiently usable discovery” (especially in criminal cases), Judge Simpson acknowledged that the plaintiff’s production was extensive.  However, he noted that “the Government collected into a separate hard drive all document and email files from the imaged drives, two of which were from Defendant’s own desktop and laptop computers”, that the “United States has provided Defendant with discovery that is term searchable by common applications also used by the United States for its own search purposes” and that “[t]he Government also provided Defendant with written and oral assistance in regard to finding specific documents”.

Stating that “[t]his Court does not interpret the Government’s obligation to include providing only evidence that would be helpful to Defendant’s case or searchable using Defendant’s preferred search tools”, Judge Simpson determined that the plaintiff fulfilled its obligation “by providing evidence in a format searchable by multiple common applications, collecting document and email files from imaged hard drives on a separate hard drive, and providing oral and written assistance in searching for files, including a colorcoded and categorized Media Review Index” and denied the defendant’s motion.

So, what do you think?  Was that the correct ruling or should the Government have done more to make the production usable?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Finds No Discovery Abuses by Defendant that Produced MSG Instead of TIFF Files: eDiscovery Case Law

Our hearts and prayers go out to the people of Paris in this difficult time.  Having said that, we still have a blog to do each day, so here it is…

In Feist v. Paxfire, Inc., 11-CV-5436 (LGS)(RLE) (S.D.N.Y. Oct. 26, 2015), New York Magistrate Judge Ronald L. Ellis denied the plaintiff’s request for reimbursement of costs and expenses related to document production, finding that the plaintiff had made no showing of significant discovery abuses by the defendant, and had not demonstrated that the defendant engaged in intentionally burdensome production.

Case Background

In this case, the plaintiff claimed that the defendant ignored her request for emails to be produced in TIFF format and also did not properly object to the requested form pursuant to the Parties’ 26(f) Report, and Federal Rule of Civil Procedure 34.  She also claimed that the defendant failed to use a vendor for its overall document collection, which resulted in duplication and discovery delays.  The defendant countered that it produced emails in the native format used by the defendant, which was in the form of Outlook .msg message files and consistent with the plaintiff’s request and also purchased specialized software from, and consulted with, a vendor.

The plaintiff also argued that the defendant intentionally overburdened Plaintiff’s counsel with duplicative document production – the original production in 2012 was provided to the plaintiff in a Dropbox folder, but an attorney for the plaintiff deleted some of the information on Dropbox, causing the Defendants to re-produce the deleted ESI with a supplemental production.  As a result of the disputes, the plaintiff requested for the defendant to award her costs and expenses related to the defendant’s production.

Judge’s Ruling

Taking on the issue of the form of production first, Judge Ellis stated: “The Court finds that Feist’s argument regarding the format of email production is meritless. Feist claims that Paxfire did not properly object to the TIFF format. However, in an email dated March 9, 2015, it is clear that the Parties did engage in ongoing discussions about the form in which emails should be produced.  Following communications with Paxfire, Feist was to speak with the Litigation Support Department about ‘production of documents in .pst form.’  This suggests that Paxfire did object by offering to produce documents in a form other than TIFF. To the extent that documents were produced in .msg form, as opposed to .pst form, the Court finds credible Paxfire’s assertion that the two formats are easily convertible from one form to the other, and that .msg format contains more metadata than TIFF format.  There has been no evidence to establish that .msg form imposed considerable costs on Feist’s part.”

As for the plaintiff’s claims regarding the defendant’s supposed lack of use of a vendor, Judge Ellis noted “Although Paxfire did not use a vendor in a way expected by Feist, the Court considers the manner in which Paxfire did use a vendor to be a non-issue.”  Regarding the defendant’s duplicate production, Judge Ellis indicated that the plaintiff’s “deletions caused Paxfire to reproduce everything it originally produced in 2012, in addition to new material Paxfire believed was relevant to the 2015 production, because Feist stated that Paxfire had failed to produce certain documents.  To the extent that Paxfire duplicated documents from 2012, the Court holds Feist responsible for such duplication. Feist stated that Paxfire ignored Feist’s suggestion that Paxfire restore the deleted Dropbox files, and instead offered to send Feist a hard drive.  On the contrary, in an email to Paxfire’s counsel dated April 14, 2015, Clark stated that Plaintiff’s counsel was attempting to restore files unsuccessfully, and that she understood ‘you are sending us a hard drive with the materials, so we don’t need to worry about drop box [sic]…’”

Finding the plaintiff’s contentions to be without merit, Judge Ellis denied her request for reimbursement of costs and expenses related to document production.

So, what do you think?  Have you ever been associated with a case where the requesting party objected to native format and preferred TIFF instead?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Defendant’s Wife Ordered to Turn Over iPhone for Examination: eDiscovery Case Law

In Brown Jordan International, Inc. et. al. v. Carmicle et. al., Consolidated Case No. 15-00037 (W.D.K.Y. Oct. 19, 2015), Kentucky District Judge Greg N. Stivers granted the plaintiffs’ expedited motion to compel the defendant’s wife to produce her iPhone for a forensic examination for information related to the case.

Case Background

In this employment dispute that spawned a counter-suit which was eventually combined into a single consolidated case, the defendant produced his electronic devices and electronic storage for forensic examination. Based upon the review of those devices and sites, the plaintiffs came to believe that the iPhone of the wife of the defendant may contain information relating to the claims in the action. As a result, the plaintiffs issued a subpoena to the the wife of the defendant, requesting her iPhone for a forensic exam.  She objected to the production of her iPhone and refused to produce it.  So, after the parties were unable to come to an agreement regarding the forensic review of her iPhone, the plaintiffs filed an Expedited Motion to Compel.

Judge’s Ruling

With regard to the relevancy of her iPhone, Judge Stivers, noting that the forensic examination report of the defendant’s laptop found “an Apple iTunes backup file of Rashna’s iPhone, which contains some of the original Brown Jordan International screenshots”, stated “[i]n this case, the information sought from Rashna’s iPhone appears to be relevant to the claims asserted in the action and good cause exists.”

Judge Stivers then stated that “[t]he burden then shifts to Rashna ‘to establish that the material either does not come within the scope of relevance or is of such marginal relevance that the potential harm resulting from production outweighs the presumption in favor of broad disclosure’”, noting that it was a heavy burden.  The defendant’s wife made the following arguments, each of which was addressed by Judge Stivers:

  • The information does not exist on her iPhone: Judge Stivers rejected that argument, indicating that “it is impossible for the Brown Jordan Parties to refute it without a forensic examination of her iPhone, and issues of spoliation of evidence have been raised in this matter”;
  • The plaintiffs already have that information: Judge Stivers indicated that he was “unpersuaded by this argument”, “in light of the potential spoliation issues and the forensic report”;
  • Producing the iPhone would be inconvenient: Judge Stivers noted that the plaintiffs indicated that “the forensic examination can occur in as little as four hours and can be completed overnight”;
  • She won’t have sufficient to review the results to assert any applicable privileges: Judge Stivers agreed to “modify the review period” to give her more time.

With her objections addressed, Judge Stivers ordered the wife of the defendant to produce her iPhone to be forensically examined and gave her nine days to complete the review of the documents collected from her iPhone.

So, what do you think?  Should she have been compelled to produce the iPhone?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.