Format Of Production – Page 19 – Electronic Discovery Law

Eli Lilly & Co. v. Wockhardt Ltd., 2010 WL 2605855 (S.D. Ind. June 22, 2010)

Dec 01 2010

Key Insight: Where plaintiff had produced millions of pages organized as maintained in the usual course of business, court denied defendant?s motion to compel plaintiff to precisely match the documents produced with the request to which they responded, but, citing plaintiff?s ?demonstrated ample resources?, ordered plaintiff to ?generally match up its documents with defendant?s requests by letter, chart, or some form of index? within 14 days; court declined to compel production of metadata that did not exist and ?OCR information? but ordered plaintiff to provide ?custodian information? as to those documents which lacked it

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Interserve, Inc. v. Fusion Garage, Ltd., 2010 WL 3931100 (N.D. Cal. Oct. 6, 2010)

Dec 01 2010

Key Insight: Where the court found that defendant?s source code?s metadata ?(i.e. programmer?s notes or comments and other annotations in the source code) ? may be relevant to [plaintiff?s] claims,? the court ordered defendant to produce the metadata but indicated that it could redact the actual source code from the production and produce the metadata subject to the parties? stipulated protective order

Nature of Case: Misappropriation of business ideas, false advertising, breach of fiduciary duty, fraud

Electronic Data Involved: Metadata for source code ?(i.e. programmer?s notes or comments and other annotations in the source code)”

Fleming v. Escort, Inc., 2010 WL 3833995 (D. Idaho Sept. 24, 2010)

Dec 01 2010

Key Insight: Where plaintiff sought the unredacted source code of defendant?s allegedly infringing products, the court credited plaintiff?s expert testimony that because source code ?generally contains notes by the writer of that code ?that explain to others who come later what the [writer] of the code was trying to accomplish at that portion of the code??, all of the source code was necessary to ensure his correct understanding of all portions and ordered plaintiff to produce the source code pursuant to the parties protective order; in so holding, court noted that ?the dilemma? of having to produce source court for unrelated products was of defendant?s ?own making? because of its business practice of bundling the source code for all of its products together

Nature of Case: Patent infringement

Electronic Data Involved: Source code

Reckitt Benckiser, Inc. v. Watson Labs., Inc.-Florida, 2010 WL 4225865 (S.D. Fla. Oct. 21, 2010)

Dec 01 2010

Key Insight: Where defendant ?unilaterally deviated? from the parties? agreement to produce in TIFF format and argued that the cost of conversion was not justified because the documents were ?minimally responsive?, court upheld the agreement and ordered the defendant to re-produce 19,000 documents that had been produced in native format

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Brinckerhoff v. Town of Paradise, 2010 WL 4806966 (E.D. Cal. Nov. 18, 2010)

Dec 01 2010

Key Insight: Citing plaintiff?s failure to raise the issue of electronic discovery at the discovery conference, her failure to request ESI in discovery, and the lack of hardship in reviewing hard copy produced by defendants, the court generally denied plaintiff?s request to compel production of ESI in native format but, as to an evaluation of plaintiff, the court compelled the production of metadata and reasoned that the revelation of the date created and whether it was modified could be pivotal for the plaintiff

Nature of Case: Employment discrimination

Electronic Data Involved: ESI

United States v. Hornback, 2010 WL 4628944 (E.D. Ky. Nov. 8, 2010)

Dec 01 2010

Key Insight: Where defendant?s expert was offered the opportunity to examine the seized computer in a private, unmonitored room as often as necessary and to consult with defendant by phone during the examination, but where simultaneous internet access was not provided, the court found that ?ample opportunity? for inspection had been provided and denied defendant?s motion to compel an altered version of the hard drive with actual photographs removed

Nature of Case: Possession of child pornography

Electronic Data Involved: Hard drive

Moore v. Shands Jacksonville Med. Ctr., 2010 WL 5137417 (M.D. Fla. Dec. 10, 2010)

Dec 01 2010

Key Insight: Where, absent specification of the format of production from either party, defendant produced video surveillance footage in what it considered a ?reasonably usable? format which required particular software for viewing, and where that software was available for free download on the internet, the court indicated it was ?not sympathetic? to plaintiff?s claims of undue burden as to the downloading the software and found that defendants had produced the video in a reasonably usable form

Nature of Case: Employment discrimination

Electronic Data Involved: Surveillance footage

Lynch v. Int. Assoc. of Machinist & Aerospace Workers, AFL-CIO, 2010 WL 5299879 (E.D. Wis. Dec. 17, 2010)

Dec 01 2010

Key Insight: Where defendant claimed it did not regularly maintain the information requested and that to search for such information manually in its database would result in substantial cost, the court found that plaintiff had not shown that the likely results of a search would produce admissible evidence or that such evidence could justify the expense to defendant and denied plaintiff?s motion to compel, including plaintiff?s request for the entire database to be produced; where plaintiff?s request ?showed a preference for maintaining functionality but did not specify a format for response? and where the request for Excel format was verbal and occurred after defendant had begun to generate its production in Word format, court found production in Word format was sufficient and that defendant did not convert the information to remove functionality in contravention of Rule 34

Nature of Case: Allegations arising from union’s failure to pursue plaintiff?s grievances following his retirement

Electronic Data Involved: Database

Tran v. Sonic Indus. Servs., Inc., 2010 WL 5376348 (W.D. Okla. Dec. 21, 2010)

Dec 01 2010

Key Insight: Where defendant produced emails in ?approximate-date order,? the court ?agree[d] with Defendants? disjunctive reading of ?or? within Rule 34 that producing documents either in the method kept during the ordinary course of business or organized and labeled into categories corresponding with the request is sufficient to satisfy the rule? and denied plaintiff?s motion to compel re-production according to separate email accounts

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

Susquehanna Commercial Finance, Inc. v. Vascular Res., Inc., No. 1:09-CV-2012, 2010 WL 4973317 (M.D. Pa. Dec. 1, 2010)

Dec 01 2010

Key Insight: Despite a prior agreement between plaintiff?s counsel and former defense counsel that parties would produce documents on disc or in hard copy, court ordered production of ESI in electronic format citing the ?halting nature of this action since it commenced, the questions that have come up regarding the sufficiency of Plaintiff?s production and efforts to identify responsive documents, and the absence of any showing that responding [to] Defendants? request for ESI would be unduly burdensome?

Nature of Case: Action to recover monies advanced

Electronic Data Involved: ESI

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