Powerhouse Marks, L.L.C. v. Chi Hsin Impex, Inc., 2006 WL 83477 (E.D. Mich. Jan. 12, 2006)
In this trademark infringement case, plaintiffs sought from defendant Wal-Mart Stores, Inc. information relating to its purchases and sales of certain exercise equipment (Interrogatories 1 and 2). In response, Wal-Mart asserted general objections and referred plaintiffs to 1771 pages of Bates stamped documents which it contended sufficiently responded to the interrogatories. Claiming that the database printouts were indecipherable and did not adequately answer their interrogatories, plaintiffs moved to compel.
The court stated that resolution of the dispute rested upon Fed.R.Civ.P. 33(d) which provides:
Where the answer to an interrogatory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served or from an examination, audit or inspection of such business records, including a compilation, abstract or summary thereof, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained . . .
Observing that the documents produced by Wal-Mart contained “line item data arranged by columns and UPC codes,” the court stated it was unable to ascertain from this raw data the information sought by the interrogatories. It therefore concluded that Wal-Mart’s document production was not adequately responsive to plaintiffs’ discovery requests.
Further, the court stated it was convinced that, given the nature of the raw data and the fact that it was much more easily used in conjunction with a financial database, Wal-Mart’s burden in deriving the information sought in the interrogatories was significantly less than that of the plaintiffs. The court stated it was also convinced that Wal-Mart was better positioned to accurately interpret and explain how the documents produced were responsive. “Certainly Defendant has the capability to compute and provide in summary fashion annual sales figures and expenditures for specific products.”
The court continued:
Under the Federal Rules, a party may be ordered to produce such information even when the electronic information does not exist in the format requested. See generally Fed.R.Civ.P. 34, Advisory Committee’s notes specifying that a “respondent may be required to use his devices to translate the data into usable form.” Furthermore:
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.
In re Air Crash Disaster at Detroit Metropolitan Airport on August 16, 1987, 130 F.R.D. 634, 636 (E.D.Mich.1989)(citing National Union Electric Corp. v. Matsushita Electric Industrial Co., Ltd., 494 F.Supp. 1257, 1262-63 (E.D.Pa.1980)). This Court similarly concludes that Defendant must produce to Plaintiffs a more usable form of data that is responsive to Plaintiffs’ Interrogatories 1 and 2.
The court ordered Wal-Mart to produce within 15 days of the order documents responsive to the interrogatory requests and/or answers to Interrogatories 1 and 2.