eDiscovery Daily Blog

• December 16, 2015

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.

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