Electronic Discovery Law
Court Denies Motion to Compel Review of CD-ROMs for Responsive Documents
Zakre v. Norddeutsche Landesbank Girozentrale, 2004 WL 764895 (S.D.N.Y. Apr. 9, 2004)
Plaintiff requested an order compelling defendant to review for responsive documents two compact discs containing some 204,000 emails. Defendant had conducted a review of the emails for privileged documents, but did not conduct a review for responsiveness to plaintiff's specific document requests. Instead, the emails were provided to plaintiff in a text-searchable format. "In other words, plaintiff may search either disc for single words or phrases, or combinations of words or phrases." 2004 WL 764895, at *1.
Defendant argued that production of the searchable CD-ROMs was sufficient, citing The Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Discovery (Sedona Conference Working Group Series 2004), Principle 11 ("A responding party may satisfy its good faith obligation to preserve and produce potentially responsive electronic data and documents by using electronic tools and processes, such as data sampling, searching, or the use of selection criteria, to identify data most likely to contain responsive information."), and In Re Lorazepam & Clorazepate Antitrust Litig., 300 F.Supp.2d 43 (D.D.C. 2004) (noting, in reference to CD-ROMs, that if the information "can be made readable, and more importantly, searchable, there is no need for an index of them. To the contrary, the [plaintiffs] can then search the documents on their own, regardless of any index produced by [defendant].").
The court held: "In light of the Sedona Principles and In re Lorazepam, and in particular of the Federal Rules of Civil Procedure, [defendant] is not obligated to provide more than a searchable CD-ROM." The court found that the defendant had produced the documents in as close a form as possible as they are kept in the usual course of business. Because the emails were text-searchable, the defendant was not further obligated to organize and label them to correspond with the plaintiff's specific requests.
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