Format Of Production – Page 17 – Electronic Discovery Law

Osborne LLC v. C.H. Robinson Co., No. 08 C 50165, 2011 WL 5076267 (N.D. Ill. Oct. 25, 2011)

Dec 01 2011

Key Insight: Where defendant ?was late in responding to some of plaintiff?s discovery requests, and failed to respond to Plaintiff?s good faith attempts to open a dialogue about electronic discovery? and where there was evidence that defendant knew what plaintiff was seeking but ?was deliberatively evasive and caused unnecessary delay? (by failing to produce relevant records because plaintiff had not specifically asked for documents containing specific terms, for example) the court indicted that defendant?s actions were not in line with the Federal Rules, the Seventh Circuit?s Pilot Program principles, or the Sedona Principles and ordered payment of certain of plaintiff?s fees and costs; court noted Plaintiff?s contributions to the delays by ?aggressively pursuing motions to compel and for sanctions when there may have been opportunities for more amicable resolutions? and thus declined to impose cost or fees related to duplicative or repetitive motions

Nature of Case: Breach of contract

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

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

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

In re Facebook PPC Adver. Litig., No. C09-03043 JF (HRL), 2011 WL 1324516 (N.D. Cal. Apr. 6, 2011)

Dec 01 2011

Key Insight: Despite Facebook?s assertions that an ESI protocol was unnecessary and that there was no basis to require rigid up-front requirements, court cited the ?clear thrust of discovery-related rules, case law, and commentary? suggesting that communication among counsel is critical and ordered parties to meet and confer to establish protocol to establish the format of production, search terms, etc.; court ordered re-production of any ESI already produced in non-searchable formats and prohibited Facebook?s further use of Watchdox.com to make ESI available to plaintiffs where the method was unduly burdensome to plaintiffs (in light of Facebook?s control of the documents, ability to track what was reviewed, etc.) and where parties previously agreed to a protective order which provided sufficient protection to the documents at issue

Electronic Data Involved: ESI

Quality Inv. Props. Santa Clara, LLC v. Serrano Electric, Inc., No. C 09-5376 LHK (PSG), 2011 WL 1364005 (N.D. Cal. Apr. 11, 2011)

Dec 01 2011

Key Insight: Where parties failed to meet and confer Pursuant to Rule 26(f) and thus failed to agree on format of production, and where plaintiff?s production was not in the format maintained in the usual course of business or organized and labeled according to the categories in the discovery requests, court ordered re-production of plaintiff?s ESI in a format agreed upon by the parties

Electronic Data Involved: ESI

Adams v. Allianceone, Inc., No. 08-CV-248-JAH (WVG), 2011 WL 2066617 (S.D. Cal. May 25, 2011)

Dec 01 2011

Key Insight: Court denied motion for sanctions for defendants? production in PDF format where plaintiff?s failed to request a specific format of production; where PDF format was ?reasonably usable? in light of the problems with the native format; where Rule 34 advisory committee notes allow for the translation of electronic data to allow production in a reasonably usable format; where there was ?insufficient evidence? to suggest that the data was converted from its native format to hinder plaintiff?s search ability; and where defendant ended up producing the native data to plaintiff?s satisfaction after conferring

Electronic Data Involved: ESI

Innis Arden Golf Club, Inc. v. O?Brien & Gere Eng?rs. Inc., No. CV106006581, 2011 WL 6117908 (Conn. Super. Ct. Nov. 18, 2011)

Dec 01 2011

Key Insight: Where plaintiff produced 64,350 pages of documents in electronic form without identifying what request the documents were responsive to, the court ordered the parties to cooperate to prepare a load file to assist in defendant?s review and ordered defendant to bear the cost and, where the court agreed with defendants that metadata was an ?important source for the defendants as part of the orderly production? of ESI, the court ordered the parties to cooperate ?in completing the metadata requested by the defendants in an appropriate format? and that ?outside costs, if any, other than copying costs for the metadata [would] also be borne by the defendants?

Electronic Data Involved: ESI, metadata

E.E.O.C. v. DHL Express, No. 10 C 6139, 2011 WL 6825516 (N.D. Ill. Dec. 28, 2011)

Dec 01 2011

Key Insight: Where DHL produced ?28,000 spreadsheets worth of information? with an index containing metadata for each spreadsheet and any emails to which the spreadsheets were attached but where plaintiff nonetheless claimed that the burden of sifting through the spreadsheets was unduly onerous and sought to compel production of information to identify each spreadsheet and that defendant organize them according to request, the court noted its authority under Rule 34 to impose requirements ?different from those in the rule? and ordered defendant to identify which request each spreadsheet or group of spreadsheets was responsive to and to provide an explanation for spreadsheets not attached to an email

Electronic Data Involved: Spreadsheets

Tag:Format Of Production