Format Of Production – Page 16 – Electronic Discovery Law

United States v. Briggs, No. 10-CR-184S, 2012 WL 5866574 (W.D.N.Y. Nov. 16, 2012)

Dec 01 2012

Key Insight: Court adopted lower court?s report and recommendation which denied defendant?s motion for sanctions related to the government?s discovery behaviors, including its production of ESI in searchable PDF but without the ability to manipulate the data, which defendant alleged failed to comply with the courts? prior order; court?s opinion, like prior opinions in this case, made clear the difficulties associated with a lack of controlling e-discovery case law/guidelines in criminal cases and put the Government ?on notice? that the Court would ?not hesitate to scrutinize the Government?s ESI discovery procedures to ensure responsiveness and fairness.?

Nature of Case: Criminal

Electronic Data Involved: Database, esi

S2 Automation LLC v. Micron Tech., Inc., No. CIV 11-0884 JB/WDS, 2012 WL 3656454 (D.N.M. Aug. 9, 2012)

Dec 01 2012

Key Insight: Court addressed a myriad of discovery disputes related to privilege logs, format of production, adequacy of plaintiff?s search for responsive materials, and the adequacy of its responses to defendant?s requests and ruled, among other things, that: plaintiff?s production in PDF was unacceptable and that production must be in native format or in the format requested by defendant and that plaintiff?s counsel?s statements (related to the court by sworn affidavit from defendant) were sufficient to put the adequacy of his compliance with Rule 26(g) in question and require production of plaintiff?s search strategy, including its interaction with counsel; court also compelled responses to a myriad of individual requests and ordered plaintiff to pay 80% of defendant?s fees in bringing this motion

Electronic Data Involved: ESI

Coquina Invs. v. Rothstein, No. 10-60786-Civ., 2012 WL 3202273 (S.D. Fla. Aug. 3, 2012)

Dec 01 2012

Key Insight: Court found that counsel for Defendant ?acted negligently in failing to comply with its discovery obligations in this case? and that Defendant ?acted willfully in failing to comply with its discovery obligations and assist its outside counsel to properly litigate this case? and ordered that certain adverse facts were established for purposes of this action and that counsel and Defendant pay Plaintiff?s reasonable attorney?s fees and costs associated with its fourth and fifth motion for sanctions; discovery violations identified included: late (including after trial) production of relevant documents, counsel?s failure to produce relevant evidence ?in a manner that preserved the documents qualities? (i.e., with highly relevant formatting changes (e.g. no color) and without metadata), both Defendant and counsel?s failure to ?conduct an adequate search,? and the conspicuous absence of Defendant?s in-house counsel in assisting or supervising the litigation; court also noted that ?[i]n many ways, this is a case of too many cooks spoiling the broth? where the defense included two firms, hundreds of lawyers, and a consultant that only one firm was aware of, for example

Nature of Case: Fraud

Electronic Data Involved: ESI

Navajo Nation v. United States, —Fed. Cl.—, 2012 WL 5398792 (Fed. Cl. Nov. 6, 2012)

Dec 01 2012

Key Insight: To settle disagreement between the parties, court entered discovery order addressing several issues including format of production, categories of ESI presumptively exempt from discovery absent a showing of good cause, and inadvertent production, among others

Electronic Data Involved: ESI

MC Asset Recovery LLC v. Castex Energy, Inc., NO. 4:07-CV-076-Y, 2012 WL 12919263 (N.D. Tex. April 26, 2012)

Dec 01 2012

Key Insight: Court acknowledged that the parties could have communicated better to resolve the issue, but granted Plaintiff?s motion to compel re-production of ESI in .tiff format with a summation load file (including metadata) where Plaintiff indicated issues with Defendant?s production but where Defendant failed to timely follow up and then voluntarily re-produced ESI but not in a format that included metadata; the court also noted the strong showing that the metadata would be useful in the case and Plaintiff?s willingness to substantially narrow the number of documents sought, thus reducing the burden of production

Electronic Data Involved: ESI with metadata

Hanwha Azdel, Inc. v. C&D Zodiac, Inc., No. 6:12-cv-00023, 2012 WL 6726412 (W.D. Va. Dec. 27, 2012)

Dec 01 2012

Key Insight: Where Defendant produced forty gigabytes of material on a single memory stick organized into folders by search term, with no other organization by custodian or otherwise, court noted that ?[o]rganizing a production to reflect how the information is kept ?in the usual course of business? sometimes requires the producing party to include different identifying information according to the type of document or file produced,? and that ?[e]mails specifically are produced in the usual course of business when responsive emails are arranged ?by custodian, in chronological order and with attachments, if any?? and found that the production was not in an appropriate format in this case; court ordered Defendant to bear the costs to convert the ESI into a readily usable format (estimated to be $8,463.00)

Electronic Data Involved: ESI

Morris v Scenera Research LLC, No. 09 CVS 19678, 2011 WL 3808544 (N.C. Super. Ct. Aug. 26, 2011)

Dec 01 2011

Key Insight: Court upheld clawback agreement between the parties which held that inadvertent production would not result in waiver; where parties entered into 26(f) agreement regarding what metadata need be produced but where plaintiff moved to compel production of additional fields because those provided did not allow him to search effectively or identify the source of particular documents, the court entered into an extensive analysis of the ?form? and ?organization? requirements in Rule 34 and withheld ruling until defendant could provide evidence regarding the burden of providing an index that could allow identification of the source of each document

Nature of Case: State employment claims

Electronic Data Involved: ESI, metadata

Atlas Resources, Inc. v. Liberty Mut. Ins. Co., No. CIV 09-1113 WJ/KBM, 2011 WL 10563364 (D.N.M. Sept. 8, 2011)

Dec 01 2011

Key Insight: For Defendant?s and counsel?s discovery violations, including delayed production of relevant information, wrongful certification that discovery was complete, producing a 500-page document 35 times, and failing to conduct adequate searches of responsive information, court evaluated the Enrenhaus factors and imposed monetary sanctions to be paid by both Defendant and its counsel; court?s analysis was particularly critical of counsel who the court concluded had ?abdicated its responsibility to exercise oversight of the discovery process? and who the court found to be subject to sanctions pursuant to both Rule 37 and 26

Nature of Case: Claims arising from contract for providing worker?s compensation insurance and claims administration

Electronic Data Involved: ESI

Corbello v. Devito, 2010 WL 4703519 (D. Nev. Nov. 12, 2010); 2011 WL 1466605 (D. Nev. Apr. 15, 2011)

Dec 01 2011

Key Insight: Where defendants had already produced ?hundreds of scripts and draft scripts? in .pdf format, a hardcopy notebook of page changes to the script, and the only two comments to the script made using the ?notes function? the Screenwriter software at issue, the court found that the production of scripts and drafts in .pdf was a reasonably usable format and that ?additional production of [the] materials in native format would be an unnecessary burden and unjustifiable waste of time and resources? and denied plaintiffs? motion to compel; in second opinion, court reconsidered prior approval or production in .pdf format and ordered production in native format

Electronic Data Involved: Native production of all changes made to the relevant script for all productions

City of Colton v. Amer. Promotional Events, Inc., 277 F.R.D. 578 (C.D. Cal. Oct. 13, 2011)

Dec 01 2011

Key Insight: Affirming the order of the magistrate judge, the Court found that Rule 34 production requirements applied equally to hard copy and ESI, that the Case Management Order did not exempt the parties from the requirements of Rule 34, and that where defendants did not produce ESI as maintained in the usual course of business, they would be required to label their productions to correspond to the categories in the request, or, as offered by plaintiff, could re-produce ESI in native format in lieu of labeling

Nature of Case: CERCLA, RCRA – seeking cleanup costs from owner of property formerly used as ammunition storage

Electronic Data Involved: ESI

Tag:Format Of Production