eDiscovery Daily Blog

• November 19, 2015

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.

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