Key Insight: Court granted parties’ Joint Motion for Entry of Agreed Order Establishing Protocol for Production of Electronically Stored Information, which addressed search terms, production format, and various other e-discovery matters
Nature of Case: Insurance coverage
Electronic Data Involved: ESI
Key Insight: Court declined to hold third party in contempt where failure to produce Gmail in native format was result of good faith (but mistaken) belief that Gmail emails cannot be produced in native format; opinion noted options for production of Gmail emails in native format
Electronic Data Involved: Gmail emails
Key Insight: Where Plaintiff maintained emails in Enterprise Vault with journaling capabilities (which captures and stores all emails in one place) and all ESI produced was searchable, sortable, paired with relevant metadata and included Concordance load files (and where emails were also produced with their attachments), the special master found the production met the requirements of 34(b)(2)(E)(ii) and was both properly produced in the form in which it was ordinarily maintained and in a reasonably usable form and further found that although 34(b)(2)(E)(i) did not apply to ESI, the production also satisfied the traditional requirement to produce documents (which ESI is not) in the manner in which it is kept in the usual course of business; special master made clear that a custodian need not be an individual and that ?[a] company, through an IT department, can serve as the custodian of electronic files kept on company servers.?
Electronic Data Involved: ESI, email
Key Insight: Where defendant produced documents as they were received from third parties and with metadata allowing plaintiff to identify the documents by bates range, file path, and document title, court found that the production ?largely complied? with Rule 34 and the obligation to produce documents as kept in the usual course of business and that sanctions were not warranted but also found that the responses created unnecessary obstacles to the plaintiff and ordered defendant to indicate whether the documents it produced were actually responsive, reasoning that plaintiff should not have to ?guess at which requests were responded to and which were not?
Electronic Data Involved: ESI
Key Insight: The court granted Defendant?s motion to compel production of email attachments, noting that ?by failing to produce email attachments, plaintiff has effectively redacted, based upon relevance, portions of documents it otherwise apparently views to be discoverable/relevant/responsive to defendants? discovery requests.? The court further noted that Plaintiff ?offered no evidence that it would suffer any undue burden from producing such electronic data.?
Electronic Data Involved: Email
Key Insight: Where plaintiff claimed that the document index which identified which Bates stamped document responded to which document request was not sufficient to enable a meaningful review and that Plaintiff?s counsel was ?unable to decipher the content? of what was produced (apparently because of the presence of ?jargon? and other codes), the court found that the document production was adequate under Rule 34, noting that there was no suggestion that the documents were not produced as they were kept in the usual course of business and that they were identified by Bates stamps to correspond with specific requests but nonetheless ordered counsel to confer in good faith to attempt resolution of ?any ?deciphering? issues? “(e.g. defense counsel or staff could sit down with plaintiff?s counsel and explain any coding or abbreviations?or have a corporate representative provide a glossary of some sort)”
Nature of Case: Lender-liability arising from alleged wrongful foreclosure
Electronic Data Involved: ESI
Key Insight: Court declined to compel production of ?the entire source code tree for each accused product? where it found that Plaintiff had not shown the need to fully understand all operations as opposed to ?only those aspects accused in the infringement claims? and where the alleged burden of production was great; court ordered that production of relevant portions of source code must include original files names and be in native format
Nature of Case: Patent Infringement
Electronic Data Involved: Source Code
Key Insight: Where defendants produced 156,000 documents as they were kept in the ordinary course of business but where the documents were insufficiently organized and only the documents? indexes and not the documents themselves were text searchable, the trial court did not abuse its discretion in holding that the production was not consistent with Defendants? discovery obligations; appellate court noted that trial court did not hold that parties are prohibited from producing documents as kept in the ordinary course of business but rather than in this instance, ?under these circumstances,? the production was not appropriate
Nature of Case: Breach of contract, trade secret misappropriations, and “other business tort claims” and counterclaims
Electronic Data Involved: Scanned hard copy and miscellaneous ESI (e.g., email)
Key Insight: Court declined to compel re-production of data in native format where no form of production was requested and where the producing non-party had already produced responsive information in hard copy
Nature of Case: debt collection
Electronic Data Involved: ESI
Key Insight: Where Plaintiff sought to inspect Defendants? computers and devices based on discrepancies discovered between metadata produced by Defendants and metadata extracted by Plaintiff?s expert, court denied the motion upon the explanation that system metadata and application metadata are not always the same and where Plaintiff failed to adequately explain why the discrepancies were cause for concern; court undertook extended discussion of format of production issues related to production ?in the ordinary course of business? and found that Defendants? production of native files (both email and other ESI) with an accompanying spreadsheet providing additional information related to where the documents were kept and how they were organized was sufficient, but, as to ?converted files and non-ESI documents,? ordered a production log identifying to which request each was responsive;? court ordered Plaintiff to produce a categorical privilege log
Nature of Case: Breach of contract, conversion
Electronic Data Involved: ESI, email, hard copy
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