eDiscovery Daily Blog

• December 10, 2014

In Pero v. Norfolk S. Ry., Co., No. 3:14-CV-16-PLR-CCS, (E.D. Tenn. Dec. 1, 2014), Tennessee Magistrate Judge C. Clifford Shirley, Jr. granted the plaintiff’s motion to compel discovery of a video declining to require the plaintiff to view the video at the defendant’s counsel’s office or obtain a license for the proprietary viewing software, ordering the defendant instead to either produce a laptop with the video loaded on it or to reimburse the plaintiff for the cost of a software license.

Case Background

The plaintiff, an employee of the defendant, alleged that he was injured during an effort to remove a tree that was blocking railroad tracks. There was a video of the incident, captured with a RailView camera on the locomotive, and the plaintiff filed a motion to compel production of the video after the defendant refused to produce the video recording captured by the RailView camera, because of perceived licensing issues with the software used to view RailView recordings. As a result, the plaintiff filed a motion to compel production of the video and the defendant moved for a protective order.

The defendant stated “that it merely owns a license to use the software and providing a copy of the license to Plaintiff for Plaintiff’s counsel to use in viewing the video would exceed the scope of Defendant’s own license”. Instead, the defendant offered “to permit Plaintiff’s counsel to view the RailView recording at Defendant’s counsel’s office” or suggested “that Plaintiff can pay $500 to obtain its own license to use the RailView software to view the recording”.

Judge’s Ruling

Judge Shirley, in his ruling, referenced Fed. R. Civ. P. 34, which “instructs that if a requesting party does not specify a form for producing electronically stored information, then the responding party ‘must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.’” He also referenced the Comments to the 2006 Amendments which state: “Under some circumstances, the responding party may need to provide some reasonable amount of technical support, information on application software, or other reasonable assistance to enable the requesting party to use the information.” Finally, he referenced relevant case law where other railroad entities objected to production of similar video recordings, singling out Donahoo v. CSX Transportation, Inc., 4:12-CV-104-JHM-HBB, Doc. 46 (E.D. Ky. July 10, 2014), and Swoope v. CSX Transportation, Inc., 4:13-CV-307-HLM, Doc. 54 (N.D. Ga. Aug. 13, 2014) as particularly persuasive.

Finding “that the Defendant’s arguments against producing the recording are not well-taken”, Judge Shirley noted that “Police cruiser cameras, store cameras, and surveillance cameras often use unique operating software, which is almost always embedded with additional information — date, location, usage of lights or other tools — but the existence and use of this software cannot insolate against production. As noted by the court in Swoope, the Defendant certainly envisioned the recordings produced by RailView being used in litigation or other claims against it. It cannot use its choice to enter into a software agreement as a shield against producing a relevant piece of discovery, nor can it use the agreement as a basis for attaching burdensome conditions to the production of the recording.”

As a result, Judge Shirley granted the motion to compel production of the video, ordering the defendant “to either (1) provide the Plaintiff with a laptop computer loaded with the video recording and the software for viewing the recording, which would be used only for that litigation and returned after the litigation, or (2) request that the Plaintiff procure a software license and the Defendant would then reimburse Plaintiff for the costs of that license, within thirty (30) days of its procurement.”

So, what do you think? Should the defendants have been compelled to produce the video or was their proposed approach acceptable? Please share any comments you might have or if you’d like to know more about a particular topic.

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