Court Orders Party to Correct Technical Problems with Electronic Production, Declines to Appoint Neutral Consultant

United States v. Merck-Medco Managed Care, L.L.C., 2005 WL 273030 (E.D.Pa. Feb. 2, 2005)

This opinion addresses the plaintiff’s motion to modify the case management order and establish certain discovery deadlines, as a result of defendant Medco’s electronic document production failings.

Earlier, Medco had notified the court of its failure to comply with the court’s deadline for document production a week after the deadline had passed. At the same time, Medco failed to inform the court when production would be complete or what documents still needed to be produced. Several weeks later, Medco claimed that its electronic document production was complete, with three exceptions: (1) documents that were withheld as privileged but that may not be privileged; (2) thirteen additional boxes; and (3) corrupted data that Medco was restoring. Plaintiffs, however, claimed that Medco’s electronic document production was still incomplete because several disks were defective and because there were major technical defects discovered in the electronic claims data that Medco had produced, including: (1) hard drive disk errors; (2) files containing questionable or missing data; and (3) and other technical file related issues.

The court found Medco’s argument that it had not been made aware of any defects in the electronic document production to be disingenuous, given that plaintiffs had sent Medco a letter with a 52-page attachment outlining the problems encountered. It also found that defendants had been dilatory in their disclosure of the defective files, costing plaintiffs unnecessary time and expense. The court admonished Medco for its discovery practices, and reminded Medco “of its obligation to this Court to contact it when discovery issues arise, not a week after it fails to meet a deadline.”

Accordingly, the court ordered Medco to correct any technical problems arising under the electronic document production, and, as to the electronic claims data, to correct any hard drive disk errors, explain any files containing questionable or missing data, and resolve other technical file related issues. In addition, the court ordered plaintiffs to promptly inform Medco, in writing, of any technical defects, and further ordered Medco to correct any problems as they arose.

The court denied plaintiffs’ request for the appointment of a special master or neutral consultant, finding that it would not expedite the resolution of the technology issues since the amount of time necessary to train the expert on the particulars would “further delay the discovery process and add yet another layer to the resolution of any electronic discovery disputes.” The court noted that the magistrate judge assigned to the case was “highly capable” of resolving any specialized technical discovery disputes, but left it to the parties to retain a neutral technical consultant at their own expense if they so desired.

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