Electronic Discovery Law

Posted at 2:00 PM on December 15, 2004 by K&L Gates

Electronic Data Discoverable Despite Production of Hard Copy and Necessity for Extraction Software

Anti-Monopoly, Inc. v. Hasbro, Inc., 1995 WL 649934 (S.D.N.Y., Nov. 3, 1995)

Defendants resisted a motion to compel production of computerized data on grounds that they would have to "create" the information in electronic format. They stated that certain reports would be produced in hard copy form only, since they were no longer available in electronic form.

The court stated:

The law is clear that data in computerized form is discoverable even if paper 'hard copies' of the information have been produced, and that the producing party can be required to design a computer program to extract the data from its computerized business records, subject to the Court's discretion as to the allocation of the costs of designing such a computer program.

1995 WL 649934, at *1. The court stated that the issue would be moot if the reports truly no longer existed in electronic form. However, the defendants must represent "not just that the reports are not available electronically but that it is not possible to electronically re-create the reports by running a specially-written computer program over existing computerized data." Id. at *3 n.1.

The court decided that it did not have sufficient information as to plaintiff's need for electronic invoices in light of other available discovery data or of the real costs (in time and money) to defendants to create a program to collect the invoice data. It ruled that the parties should discuss the issue further, and noted that further court rulings may depend on plaintiff's willingness to pay defendants' costs in creating the required computer program. Id. at *3.

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