Court Denies Request for Production in Native Format and Imaging of Hard Drives

Ponca Tribe of Indians of Okla. v. Cont’l Carbon Co., 2006 WL 2927878 (W.D. Okla. Oct. 11, 2006)

In this decision, the court ruled on plaintiffs’ motion to compel certain electronic information.

First, the court rejected plaintiffs’ request that defendant permit them to image or download to a database all information stored in defendant’s “data historian.” Plaintiffs initially proposed imaging or mirroring the data historian as a means of easily obtaining the requested information. However, defendant objected and argued that such imaging would necessarily require approximately 100 days to complete and that any such imaging would violate the licensing for the operating software used. Plaintiffs then suggested that the information be downloaded into a database using software currently possessed by defendant. Defendant responded that it did not own the software modules, but that such software could be purchased for approximately $5,000 and would require another $5,000 in training/programming to make the modules useable.

The court concluded that production of the data historian information was unduly burdensome, and noted that plaintiffs had failed to come forward with a sufficient argument demonstrating that their need for the information contained within the data historian outweighed the burden of producing it.

Second, the court denied plaintiffs’ request that defendant re-produce email and electronic material in their native electronic format, or that plaintiffs be permitted to make mirror image copies from certain computers used by key personnel. Plaintiffs complained that defendant had not produced email and other electronic documents in the manner in which they were kept in the order and course of business, but instead produced “the equivalent of pictures of the e-mails” and “photocopies of other electronic documents.” The court pointed out that the original document requests issued by plaintiffs failed to specify the manner in which electronic or computer information should be produced, and that defendant elected to use a commonly accepted means of complying with the request. The court concluded that nothing in the materials provided by plaintiffs supported requiring defendant to reproduce the information in a different format.

Third, the court rejected plaintiffs’ complaint about the manner in which defendant provided electronic documents – that they were produced as single page documents with no consideration of the organization, and it was not readily apparent which pages connected to which pages. Plaintiffs argued that the documents had been produced “in a jumbled mass ‘dump truck’ delivery.” Defendant countered that the documents were produced precisely as they were obtained from company files, were in sequential order, and there was no shuffling or mixing of the pages. Defendant further noted that plaintiffs had been provided with text files which were, in fact, the load files plaintiffs complained they never received and from which plaintiffs could easily reconstruct the manner in which the documents were loaded.

The court concluded:

The Court is not persuaded that CCC has produced the documents in a manner or form designed to frustrate Plaintiffs’ use of the material. Indeed, it appears from the parties’ representations to the Court that the production to Plaintiffs followed the accepted industry practice and that Plaintiffs are capable of manipulating the information in a manner which makes it sufficiently usable.

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