Electronic Discovery Law

Nat'l Union Elec. Corp. v. Matsushita Elec. Ind. Co., 494 F.Supp. 1257 (E.D. Pa. 1980)

Defendant moved to require plaintiff's computer experts to create a computer-readable computer tape containing sales data that had been produced in answers to interrogatories. Although the defendant could themselves create the tape, it would require two months and "many thousands of dollars." 494 F.Supp. at 1258.

Plaintiffs, on the other hand, could create the tape simply by rerunning the program and directing it to extract the data to tape, rather than printing the data on paper. The defendants offered to pay the cost of the operation.

Granting the motion, the court reasoned:

While a printout might be "reasonably usable" within the meaning of Rule 34, the production of a party's data in a form which is directly readable by the adverse party's computers is the preferred alternative, according to the Manual for Complex Litigation.

Although there may be some differences between requiring the production of existing tapes and requiring a party to so program the computer as to produce data in computer-readable as opposed to printout form, we find it to be a distinction without a difference, at least in the circumstances of this case . . .

It may well be that . . . the framers of the Federal Rules of Civil Procedure could not foresee the computer age. However, we know we now live in an era when much of the data which our society desires to retain is stored in computer discs. This process will escalate in years to come; we suspect that by the year 2000 virtually all data will be stored in some form of computer memory. To interpret the Federal Rules which, after all, are to be construed to "secure the just, speedy, and inexpensive determination of every action," in a manner which would preclude the production of material such as is requested here, would eventually defeat their purpose.

Id. at 1262-63 (citation omitted).