Jones v. Goord, 2002 WL 1007614 (S.D.N.Y. May 16, 2002)
Prisoners brought class action suit challenging state's program of housing two prisoners in a cell originally designed for one prisoner, arguing that the practice increased disease transmission and violence among the prisoners. After more than three years of discovery, plaintiffs sought the production of six different electronic databases.
The databases contained a vast amount of information and enabled the state to track the location of prisoners in the system, record and recover unusual incident reports and disciplinary records, monitor prisoners' medical problems, track prisoners with certain medical problems, and record the pharmaceuticals required by prisoners. Plaintiffs' assertions about the kinds of analyses they wished to perform, the security issues involved, and the practicalities of reproducing the material and utilizing it for the desired purposes were supported only by affidavits of counsel. Plaintiffs provided no evidentiary support from any statistical expert concerning the kinds of hypotheses that could be tested, or what statistical methodology might produce reliable results; further, there was no affidavit from an information technology expert regarding how the databases might be put in usable form or maintained in a secure manner. 2002 WL 1007614, at *4.
In response, the state argued that the databases were not useful in the manner plaintiffs suggested because the data contained in them were already available to plaintiffs in hard copy form, previously produced to them at great public expense, and because the databases involved, which were constructed for different purposes using different software and user interfaces for different users within the prison system, could not simply be downloaded and massaged as easily as plaintiffs claimed. Id. at *4. The state argued that reproduction of the databases would be a burdensome and technically complex task, since, in order to be usable, the data would have to be accompanied by extensive technical commentary and decoding to permit any unfamiliar user to understand the systems, integrate the different databases involved, and extract from them data in a form that could facilitate the comparisons and statistical tests contemplated by plaintiffs. The state further argued that neither the existing protective order nor any conceivable protective measures could adequately address the security concerns presented, because: (1) the very structure of the databases and the necessary technical specifications that would have to accompany them in order to permit plaintiffs' experts to make any productive use of them, would disclose features of the correctional computer systems that (if disseminated) would render the system more vulnerable to hacking; (2) although much of the information contained in the databases had already been produced in hard copy, information in electronic form "is far easier to steal and transmit than the extensive paper records already in plaintiffs' hands"; (3) information could not practically be redacted from the databases and would create risks to the physical security and privacy of guards and other staff. Id. at *5.
The court denied plaintiffs' motion to compel. It concluded that the state had made a compelling showing that the burden of the proposed discovery far outweighed its likely benefit for resolving the issues before the court. It found that the burden of production was "extremely serious," and that "providing plaintiffs with any meaningful access to aspects of this system is not a matter of duplicating discs and handing over copies." Id. at 10-11. It also found that the data was "highly sensitive," and that disclosure of the codes and documentation required to utilize the databases would reveal the techniques used to record and store data, which was a highly confidential matter in itself.
The court found that the benefits suggested by plaintiffs were elusive: "On the present record, plaintiffs can only be characterized as demanding a huge volume of sensitive data, in a form that may or may not be usable for any productive purpose, on the vague hope that it will prove useful when subjected to future massage by unspecified experts." Id. at *13. The court further concluded that the discovery request was belated, and that the plaintiffs had, and let pass, ample opportunity to obtain the requested information earlier in the discovery process:
The parties have spent years, significant sums, and exhaustive efforts on discovering and analyzing a mountain of paper - a project that, plaintiffs now claim at the eleventh hour before expiration of the n-th discovery deadline, was largely useless, or at least superseded, because the production of electronic data instead would have accomplished the same thing and more. Plaintiffs may not have identified the specific databases by name until a deposition in December 2001 laid out the details of the DOCS computer system, but they have been aware through discovery that DOCS, like any modern enterprise, keeps its records in computerized form. . . . [M]any of the reports and records that defendants have disclosed in hard-copy form have self-evidently been produced as printouts from computer files.
Nothing prevented plaintiffs from seeking, either informally . . . . or formally by interrogatory, further information about the computer databases available from DOCS. Nothing prevented plaintiffs from discussing with their adversaries in a timely fashion, before the expenditure of hundreds of thousands of dollars on conventional document discovery, whether the mountain of paper was really necessary, or whether a cooperative effort to explore electronic discovery possibilities could have led to a mutually beneficial agreement. Nothing prevented plaintiffs from retaining experts to advise them as to what kinds of electronic data would likely be found in the DOCS computer system, what kinds of data would be necessary to evaluate plaintiffs' claims, and what kinds of security precautions could be presented to the State to satisfy its legitimate interests and induce agreement to cooperate in providing data. Nothing in the record suggest that any such efforts were made, or, indeed, that plaintiffs took any step to seek discovery of any electronic data until after their adversaries had expended exorbitant sums of public money on conventional discovery, and until the ultimate deadline for completing fact discovery, after seven years of litigation, was at last at hand.
Id. at 16.
As to these last points made by the court, the case provides an excellent example of why parties should think about and discuss electronic discovery issues at the very outset of litigation, before large expenditures are made to produce "mountains" of paper documents also available in electronic form.