Archive: September 2017

1
The Expert Institute: Best Legal Blog Nominee – Vote Now!
2
Court Imposes Adverse Inference for Failure to Preserve Non-Party’s Text Messages within Defendants’ “Control”
3
Court: Production of Hard Copy Versions of Documents Also Kept As ESI Does Not “Run Afoul” of Rule 34

The Expert Institute: Best Legal Blog Nominee – Vote Now!

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Court Imposes Adverse Inference for Failure to Preserve Non-Party’s Text Messages within Defendants’ “Control”

Ronnie Van Zant, Inc. v. Pyle, No. 17 Civ. 3360 (RWS), 2017 WL 3721777 (S.D.N.Y. Aug. 28, 2017)

In this case, the court imposed an adverse inference against certain defendants for their failure to preserve text messages in the possession of a non-party, where the court found that the defendants had control of the non-party’s text messages, citing the non-party’s close working relationship with the defendants, his prior participation in the litigation (e.g., by providing documents, etc.), and his financial interest in the at-issue film (and thus the outcome of the litigation).

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Court: Production of Hard Copy Versions of Documents Also Kept As ESI Does Not “Run Afoul” of Rule 34

Ortega v. Mgmt. & Training Corp., NO. 16-cv-0665 MV/SMV, 2017 WL 3588818 (D.N.M. Jan. 1, 2017)

In this case, Plaintiff sought to compel native/electronic production of documents previously produced in hard copy. Defendant claimed that the documents in question were “ordinarily kept by Defendant both electronically and in hard copy” and produced only the hard copy format.  The court found that Defendant’s production did not “run afoul of Rule 34.”

Rule 34 does not require the producing party to produce documents in multiple formats. Fed. R. Civ. P. 34(b)(2)(E)(iii). Nor does Rule 34 require the producing party to produce electronically stored documents in the form in which they are ordinarily maintained. Fed. R. Civ. P. 34(b) advisory committee’s note to 2006 amendment. Rather, the producing party is required only to produce such documents in a “reasonably usable form”; it cannot convert electronically stored information “to a different form that makes it more difficult or burdensome for the requesting party” to use the documents. Id. Defendant’s production of hard copy versions of documents kept both electronically and in hard copy does not run afoul of Rule 34.

In footnote, the court “encourage[d]” the defendant to produce the documents electronically, “to the extent it [could] do so without incurring significant expense.”

A copy of the court’s brief order is available here.

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