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Welcome to the new eLessons Learned
eLessons Learned features insightful content authored primarily by law students from throughout the country. The posts are written to appeal to a broad spectrum of readers, including those with little eDiscovery knowledge.
Each blog post: (a) identifies cases that address technology mishaps; (b) exposes the specific conduct that caused a problem; (c) explains how and why the conduct was improper; and (d) offers suggestions on how to learn from these mistakes and prevent similar ones from reoccurring.
Visit our signature feature, e-Discovery Origins: Zubulake, designed to give readers a primer on the e-discovery movement through blog posts about the Zubulake series of court opinions which helped form the foundation for e-discovery. Go There
Interested students may apply for the opportunity to write for e-Lessons Learned by filling out the simple application. Go There
Communication is key to any joint status report! Parties should not risk annoying the court by refusing to withdraw a motion when both sides are essentially in agreement. The court will find a protective order unnecessary when the defendants completely understand their preservation duties, acknowledge their duties, and have made substantial efforts to preserve discoverable evidence. Under such circumstances, the plaintiff or moving party will both lose the motion and risk wasting the court’s valued time. In McDaniel v. Loyola University Medical Center, McDaniel, the plaintiff, filed a motion seeking a document preservation order after learning that the Loyola University Medical Center, the defendant, planned to change its e-mail system provider. The defendant was transitioning from GroupWise to Microsoft Office, and the plaintiff feared that relevant e-mails would be erased or lost. In response, the court directed the parties to confer in an effort to resolve the preservation issue in a mutually agreeable way. In the submitted joint status report, the defendant demonstrated its belief that it had adequately assured the plaintiff of his spoliation concerns; however the plaintiff was still unwilling to withdraw the motion. As a starting proposition, a party has a duty to preserve evidence if it reasonably knew or could reasonably foresee was material to a potential legal action. Almost a year before the plaintiff filed his initial complaint in this case, the defendant issued litigation holds and constant reminders to 71 employees who may have information relevant to the litigation. Furthermore, the defendant took similar precautions with the additional 20 custodians identified by the plaintiff. Despite the defendant continually recognizing that it was under an obligation to preserve evidence, the plaintiff needlessly insisted that a preservation order was a necessary additional precaution. The court disagreed with the plaintiff and held that a preservation order was unnecessary. When deciding whether to enter the preservation order, the court considered (1) whether the plaintiff demonstrated that the defendant would destroy evidence, (2) whether the plaintiff would suffer irreparable harm without a preservation order, and (3) the burden that likely would result from granting the protective order. Here, the defendant was fully apprised of the scope and gravity of its preservation duties, and the plaintiff failed to demonstrate that the defendant would destroy evidence without a preservation order. The court found that a protective order would be superfluous and needlessly burdensome in this case. Moreover, the court noted in its decision that the parties appeared to be talking past each other and, in actuality, were in complete agreement regarding the defendant’s preservation duties. Lawyers must avoid submitting superfluous and needlessly burdensome motions to the court. Do not waste the court’s valuable time with unnecessary motions on issues that have already been mutually agreed on by both parties. The last thing any lawyer should want to do is to get on a judge’s bad side during the discovery stage of the litigation. Gary Discovery received a B.S. in Business Administration, with a concentration in Finance from the Bartley School of Business at Villanova University. He will receive his J.D. from Seton Hall University School of Law in 2015. After graduation, Gary will clerk for a presiding civil judge in the Superior Court of New Jersey. Want to read more articles like this? Sign up for our post notification newsletter, here.
The form of ESI production is specified in Rule 34, subject to court-approved agreement between the parties. If a particular format is important to a requesting party, it is critical to stipulate it unambiguously early on. If the party fails to make that stipulation, it will most likely be too late to ask for reproduction of documents that have already been produced although not in the format the requesting party expects, unless the producing party is in violation of the very flexible Rule 34. In Melian Labs v. Triology LLC., the parties filed a case management conference statement (referred as the “Joint Rule 26(f) Report”), and informed the district court that: With respect to the production of electronic data and information, the parties agree that the production of metadata beyond the following fields [is] not necessary in this lawsuit absent a showing of a compelling need: Date sent, Time Sent, Date Received, Time Received, To, From, CC, BCC, and Email Subject. The parties agree to produce documents electronic form in paper, PDF, or TIFF format, and spreadsheet and certain other electronic files in native format when it is more practicable to do so. During a 2-month period following the conference, Melian produced 1,218 pages of documents in PDF format. Triology complained about the format, claiming that these PDFs were stripped of all metadata in violation of the agreement of the parties and that the spreadsheets were not produced in their native format. Melian disagreed and the parties filed joint letters to the court to address the sufficiency of Melian’s ESI production. As with the e-mail production, Triology contended that Melian’s production of large PDF image documents was violative of FRCR 34(b)(2)(E) because they were not produced in their native format and were not reasonably usable. The court pointed out that Rule 34(b) only requires that the parties produce documents as they are kept in the usual course of business or in the form ordinarily maintained unless otherwise stipulated. The Joint Rule 26(f) Report was a stipulation. But the Report did not require that all ESI be produced electronically. Instead, it stated that ESI may be produced in paper, PDF or TIFF. Production in electronically searchable format certainly would ease Triology’s review, but that was not required by the Report. E-mails produced by Melian in paper or PDF contained text fields prescribed by the Report and the e-mail production was thus not deficient. To the extent that some e-mails had these fields cut off or it was not apparent from the face of the e-mail, the court instructed Triology to serve a request to Melian for further providing the missing information. As for the spreadsheets, Triology contended that Melian had failed to comply with the Joint Rule 26(f) Report by refusing to produce all spreadsheets in their native format. The court again held against Triology, stating that the Report did not require the production of ESI in their native format. In this case, when some of the spreadsheet printouts were difficult to read, it produced them in native format (Excel) upon request by Triology. The court approved of this remedial procedure and held that Melian did not need to produce all spreadsheets electronically in native format according to the stipulation of the Report. The court was noticeably agitated by this kind of complaint asking for the court’s involvement. The court believed that these disputes could have been easily resolved by the parties without seeking court intervention. Here is a quote from the last sentence of the opinion: “the parties are ordered to meet and confer in good faith before seeking further court intervention.” The bottom line is that if a requesting party wants to have documents produced in their native format, it should make a clear and unambiguous stipulation as to the form of production in order to override the choices afforded to the producing party by Rule 34. Of course, the stipulation, usually reached at some case management conference, must be agreed upon by both parties and approved by the court after the burden and proportionality issues are considered by the court. And very importantly, stay on the good side of the court by trying to resolve these discovery issues without going to the Court for intervention. Gang Chen is a Senior Segment Manager in the Intellectual Property Business Group of Alcatel-Lucent, and a fourth-year evening student at Seton Hall University School of Law focusing on patent law. Want to read more articles like this? Sign up for our post notification newsletter, here.
There is nothing more daunting then receiving a request for a backup drive with 1 or more gigabytes of data on it. The good news is that the courts have recently allowed the use of a new tool that can save business owners time and money: predictive coding. In the case of Dynamo Holdings v. Commissioner of Internal Revenue, the court allowed the use of predictive coding in order to identify relevant and confidential information stored on a company backup drive. This was one step in the course of court technology efficiency, but a giant step in the world of electronic discovery! Whether or not the parties were allowed to use predictive coding became a central issue because the back up drive in question held approximately one gigabyte of electronic data. Just to give you a frame of reference, this equates to approximately 200,000 to 400,000 individual documents. The producing party estimated that is would cost them about $450,000 just to review all the data before giving it to the opposing party. The producing party and the client paying for the discovery was daunted with the idea or spending that much time and money just reviewing documents. Also, the alternative of giving up the data without reviewing it could be detrimental to their case. In the end, the cost effective, technological answer was predictive coding. This opinion was highly influenced by the article written by Magistrate Judge Andrew Peck’ who describes predictive coding. Predictive coding is a process that essentially can predict the relevance of documents and identify which documents are not responsive. Judge Peck’s article explains that the computer identifies properties of documents and uses those properties to code other documents. As more sample documents are coded, the computer actually predicts the future coding. In a way, predictive coding is a reviewer teaching the computer what types of documents are relevant and what is confidential. Judge Peck states in his article that it usually takes only a few thousand documents to train the computer, which, compared to one gigabyte of data, is a drop in the bucket. In other words, predictive coding is a tool that uses algorithms to search rather than manually reinventing the wheel every time a labor-intensive discovery request is made. The algorithms use keywords, dates, custodians, and documents types in order to filter through hundreds of thousands of documents in a drastically shortened period of time. Now, some may be thinking, “how do you know that coding is producing the correct results?” Senior reviewers take samples throughout the process in order to determine the accuracy of the results. Additionally, a log can be produced detailing the records that were withheld and the reasons for doing so. This process may not be as simple as implementing a “claw back” provision (aka. a party can recall a document that was not supposed to be produced); however, it presents an accurate and efficient way to move along a trial and discovery process while mitigating harm to the party producing the information. Judge Buch weighed the interest of both parties: receiving party wanted as many documents as could be produced, and producing party wanted to protect the client from producing irrelevant or confidential documents. The predictive coding process was considered: (1) restore some or all of the date from the tapes; (2) Qualify the restored date; (3) Index and load the qualified restored date into a review environment; (5) use predictive coding to review the remaining data using search criteria that the parties agree upon; and (6) produce the relevant non-privileged information and privilege log that sets forth claimed privileged documents. In the end, Judge Buch’s conclusion was very clear. Predictive coding is an acceptable electronic search tool that can be used during the discovery process. Victoria O’Connor Blazeski (formerly Victoria L. O’Connor) received her B.S. form Stevens Institute of Technology, and she will receive her J.D. from Seton Hall University School of Law in 2015. Prior to law school, she worked as an account manager in the Corporate Tax Provision department of Thomson Reuters, Tax & Accounting. Victoria is a former D3 college basketball player, and she has an interest in tax law and civil litigation. After graduating, she will clerk for the Hon. Joseph M. Andresini, J.T.C. in the Tax Courts of New Jersey. Want to read more articles like this? Sign up for our post notification newsletter, here.  For information about predictive coding, see Magistrate Judge Andrew Peck’s published article: Search, Forward: Will Manual Document Review and Keyboard Searches be Replaced by Computer-Assisted Coding?, L. Tech. News (Oct. 2011).
Executive Mgmt. Services, Inc. v. Fifth Third Bank is not a riveting case to read. It involves a rather mundane breach of contract claim by the plaintiff alleging wrongdoing by the defendant. Namely, Executive Management Services brought suit against Fifth Third Bank alleging that the bank had made misleading statements regarding interest-rate swaps. While the subject matter of the claim would fail to interest anyone, the procedural elements and motion practice offer a far more interesting and educational prospect. In building their defense, Fifth Third Bank sent Executive Management Services multiple discovery requests, which included tax returns, financial statements, and documents referring or relating to their (EMS) loan applications. However, Executive Management Services refused to produce the requested discovery on three grounds. First, EMS argued that the requested as they have "not claimed to be unsophisticated regarding standard commercial banking," only that they "did not understand the risks of the swap transactions." Second, the EMS argued that the defendant’s discovery requests were "overly board and unduly burdensome." Third, EMS claimed privilege regarding the requested documents under both attorney-client privilege and the work product doctrine. The court rejected EMS’s first argument right out of the gate. EMS claimed that the documents sought were not relevant to the issue at bar and therefore did not need to be turned over to their adversary. EMS claimed these documents were irrelevant because they had "not claimed to be unsophisticated regarding standard commercial banking," but rather that "did not understand the risks of the swap transactions." However, the court was not persuaded by this argument because even though this was a new area of investment banking, it remained the same procedure and protocol as any form of investment banking. Therefore, EMS’s past actions in commercial banking provided them with a foundation by which to understand this new field of investment and thus the documents proving this foundation were relevant. The court also rejected EMS’s argument that the documents were privileged under attorney-client privilege and the work product doctrine. While there may have been concerns regarding the confidentiality of these documents the court stated that the protective order in place addressed and negated all of the concerns posed by this argument. EMS’s second argument seems like it could have had the most impact out of the three; however, hardly any effort at all was put forth in crafting it. The plaintiffs simply stated that the production of such documents was unduly burdensome and overbroad and left it at that. There was no further development of this argument and therefore the court rejected it on its face. If the plaintiffs had put forth any evidence regarding why the request was overbroad or unduly burdensome the court may have limited the requested discovery. The plaintiffs should have offered evidence regarding why this request was unduly burdensome and overbroad; their failure to do so resulted in the court rejecting this argument on its face. A.S. Mitchell received his B.A. in Political Science from the University of Central Florida (2008). He will receive his J.D. from Seton Hall University School of Law in 2015. Want to read more articles like this? Sign up for our post notification newsletter, here.
Were the defendants at fault for providing to the plaintiffs a CD containing information confusing to the plaintiffs? A court found that, no, the parties should have communicated with each other in order to facilitate the discovery process. The issue arose when the defendants provided a CD to the plaintiffs containing information the plaintiffs had requested. However, the plaintiffs did not know how the defendants collected the information on the CD, nor did the plaintiffs know how the contents were responsive to their discovery requests. Based on this incident, the plaintiffs filed this motion to appoint a neutral discovery master to oversee the discovery process. The plaintiffs also argued that the defendants had not been timely with their discovery submissions. However, as the court pointed out, the plaintiffs had not been timely. Ultimately, the court found that if the parties had merely taken the time to communicate with each other that this motion likely could have been avoided. The court further stated that the parties must, “meet and confer in good faith in order to communicate about issues of untimely or confusing production and resolve them without judicial intervention.” Thus, the court dismissed the motion. Jessie is a third-year student at Seton Hall University School of Law (Class of 2015). She graduated from Rutgers University, New Brunswick in 2012 with a B.A. in philosophy and Political Science. Want to read more articles like this? Sign up for our post notification newsletter, here.
The District Court for Massachusetts held that “the use of broad terms such as ‘relate to’ or ‘relating to’ provides no basis upon which an individual or entity can reasonably determine what documents may or may not be responsive.” In doing so, the court ordered the defendants to produce documents responsive to a request and that request calls for documents “related to” a topic, the court modified the requests to strike the language “related to” and replacing it with “concerning.” This holding comes in response to the plaintiff’s Motion to Compel defendants Reposes to Document Requests and Production of all documents. The plaintiff in this case is the previous employer of the two defendants, husband and wife. The defendants were both employed by the plaintiff in different sectors for several years. The company now disputes that trade secrets developed by both parties were the sole property of them. Keep in mind, one of the defendants now works with a competitor company, so you can see the importance of these trade secrets. The plaintiffs brought claims alleging violation of the Computer Fraud and Abuse Act (“CFAA”), conversion, misappropriation of trade secrets, and breach of fiduciary duty. Soon thereafter, the defendants offered responses to the first set of Requests for Document Production. In summary, there are limits to the scope of discovery under Rule 26(b). They are: (1) unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (2) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (3) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the projected discovery in resolving the issues. See Fed. R. Civ. P. 26(b)(2)(C). The defendant former employees objected to discovery on the grounds that the requests were overly broad and unduly burdensome. The court agreed in the finding that the requests were overly broad, specifically because they call for documents “related to” a topic. Use of the word “concerning” would be the correct qualifying language. To see video of the morning session at court on this case, click here. Amanda is a third-year student at Seton Hall University School of Law, where she is pursuing a J.D. with a certificate in Health Law. Prior to law school, she was a 2011 magna cum laude graduate of Seton Hall University, where she earned Bachelor of Arts in Political Science and a minor in Philosophy. Presently, she is a law clerk at a small firm handling real estate and bankruptcy matters. After graduation this native New Yorker hopes to work at a mid-sized firm in the Big Apple. Want to read more articles like this? Sign up for our post notification newsletter, here.
In this case, the plaintiff Nicole Baker sued Bayer Healthcare Pharmaceutical Inc., complaining that the Bayer product Mirena was not adequately accompanied by warnings of its side effects. Baker asked Bayer to produce databases that contains sales calls made by the marketing and sales department to physician’s offices. The sales calls notes also contained conversations between sales representatives and healthcare providers. Bayer argued that only the sales calls notes concerning Baker’s treating physician are relevant. Bayer also argued that producing all the sales calls notes are unduly burdensome and excessive in light of the needs of the case. Ultimately, the court found in favor of the plaintiff, and finds that the databases containing all sales calls must be produced due to their relevance to the current case. Federal Rule of Civil Procedure 26(b)(1) permits “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” The information sought “need not be admissible at the trial” so long as it “appears reasonably calculated to lead to the discovery of admissible evidence.” The crux of the plaintiff’s argument is that all the sales call notes, not just limited to those related to her physician, are relevant to her case because they would ascertain whether the pharmaceutical company is overpromoting the product Mirena. Overproduction would mean that there could be dilution or nullification of any warnings, thereby rendering the warnings inadequate. The plaintiff argued that the volume and substance of the sales calls notes establish whether there was a vigorous, aggressive sales campaign to the medical profession, leading to failure to heed written warnings. While this argument appears to be attenuated, it does fall under the standard of being reasonably calculated to lead to the discovery of admissible evidence. The court thought although it was a burden to the defendant, all of the sales calls notes are relevant to establishing if Bayer’s Mirena campaign was so pervasive that any doctor, including the plaintiff’s, would fail to pay attention to warnings about the product’s side effects. Rebecca Hsu, a Seton Hall University School of Law student (Class of 2015), focuses her studies in the area of patent law, with a concentration in Intellectual Property. She is also certified in Healthcare Compliance, and has worked in Compliance at Otsuka America Pharmaceuticals, Inc. Prior to law school, she graduated cum laude from UCLA and completed graduate work in biomedical science. She has co-authored two medical science research articles, as well as completed fellowships through UCLA Medicine and the Medical College of Wisconsin. In addition to awards for her academic achievements, Rebecca has been honored by awards for her community service with disadvantaged communities. In her spare time, Rebecca regularly practices outdoor rock climbing, and can be found camping in the Adirondacks. Want to read more articles like this? Sign up for our post notification newsletter, here
After requesting and receiving a consumer credit disclosure from defendant Experian, plaintiff Edward Dixon noticed that Experian was not reporting his payment history concerning his mortgage account held by Green Tree Servicing, LLC. While Dixon admits that his mortgage account was previously held by GMAC Mortgage until the account was discharged in bankruptcy, he argued that his payment history with Green Tree should nevertheless have been reported by Experian because he continued to make mortgage payments to Green Tree post-bankruptcy. After filing suit against Experian alleging violations of the Fair Credit Reporting Act, Dixon served seventy Requests for Production and 40 topics for Experian’s Rule 30(b)(6) corporate witness. While Experian asserts it has already produced 966 pages of discovery, Dixon asked the court to compel Experian to provide supplemental responses, specifically, in their native format as originally requested. After discussing Rule 34 and Rule 26 in explaining the dynamics of ESI-related discovery, the court noted that Dixon explicitly requested that Experian produce electronically stored information in the electronic form in which it is normally kept. Dixon's request further defined the applicable terms of “electronically stored information” and “native format” so there would no confusion as to the nature of his discovery request. In response, Experian produced the information in unsearchable PDF format but did not address ESI or object to Dixon’s ESI specifications. Thus, the court ruled, “Experian waived any objection to the ESI format requested by Dixon pursuant to Rule 34(b)(1)(C).” This waiver by failure to object was perhaps Experian’s greatest oversight. Not only did the court subsequently grant Dixon’s motion to compel as to his requests for discovery in native format, but the court made clear that “[i]t is not Dixon’s burden to now explain why the native format…would be more useful to him than the .pdfs.” Even though Experian was not ordered to export the documents into a readable format such as Microsoft Word or Excel, Experian was still ordered to produce the documents in their requested native format. In addition to compelling documents in their native format, Dixon also asked the court to compel internal and external communications and written policies pertaining to how mortgage accounts of bankrupt consumers are and should be reported. Experian argued that it has already produced a complete, text-searchable version of the 2012 Credit Reporting Resource Guide and argues that no further information need be produced. Agreeing with Dixon, the court found that internal and external communications, “including those pertaining to how mortgage accounts of bankrupt consumers are and should be reported” are relevant to the policies included in the Guide and help established whether Experian’s procedures were reasonable. Further, the court ordered Experian to, at least, conduct a search as to whether any communications or emails with Green Tree regarding Dixon’s dispute exist because such communications are relevant to Dixon’s claims. In the event Experian found no communications exist, the court advised Experian to “state so in its amended responses.” The court then examined several of Dixon’s specific discovery requests. Dixon requested that Experian produce “any and all name scans, snap shots, or other periodic backups of Plaintiff’s file,” presumably in an attempt to demonstrate the content of his credit file at various points in time. Dixon argued such request went to the reasonableness of Experian’s policy that post-bankruptcy payments not be reported. Experian countered, stating that such request is unduly burdensome, overly broad, neither relevant to the litigation, nor reasonably calculated to lead to the discovery of admissible evidence and vague and ambiguous as to the meaning of its terms. The court ultimately agreed with Experian and held that “even if the discovery were relevant . . . the burden on Experian in compiling such ‘periodic backups’ that do not already exist outweigh Dixon’s need for the information” especially since the court ordered Experian to provide Dixon with documentation in native format. The motion to compel this periodic backup information was denied. In ruling on Dixon’s motion to compel documents Dixon believes Experian is withholding, the court found little support that Experian was actually withholding documents and ruled that “Dixon’s suspicion that additional documents may exist is an insufficient basis on which to compel discovery.” The court additionally declined to award any expenses to Dixon related to this motion. The court then concluded by reviewing Experian’s motion for a protective order based on Experian’s assertion that Dixon’s Rule 30(b)(6) deposition notice exceeds the scope of discovery permitted by Rule 26(b). Experian requested protection from six of the thirty-one topics identified by Dixon that Experian believes are not relevant to this case. The court granted protection for five of these six topics: protection from depositions on Experian’s periodic backups; protection from depositions on the exportation of consumer credit files into a readable format; protection from depositions regarding e-mail records; protection from depositions regarding a confidential, one-page document that produced in another lawsuit, and; protection from depositions concerning the identities of Experian representatives most knowledgeable regarding searching and positing queries to an internal database. Many of these protections were granted on the basis that the court had already compelled Experian to produce documents in their native format, thus eliminating the need for excessive depositions aimed at acquiring the same or similar information. The court, however, denied the motion for protective order as to communications between Experian and Consumer Data Industry Association, the organization responsible for producing the 2012 Guide relied on by Experian for guidelines on credit reporting. The court held that should Experian produce responsive communications, then “Dixon is entitled to pursue this topic in Rule 30(b)(6) deposition.” Based on the foregoing, the court granted in part and denied in part Dixon’s motion to compel. Similarly, the court granted in part and denied in part Experian’s motion for a protective order and ordered Experian to make a Rule 30(b)(6) witness available to Dixon for deposition on the single topic if circumstances so demand. The court concluded by extending the discovery deadline to allow the parties to comply with the court order. Nicole was a 2010 magna cum laude graduate of Northeastern University located in Boston, Massachusetts where she earned her B.A. in English and Political Science. She will receive her J.D. from Seton Hall University School of Law in 2015. After graduation, Nicole will serve as a clerk to a trial judge of the Superior Court of New Jersey in the Morris-Sussex Vicinage. Want to read more articles like this? Sign up for our post notification newsletter, here.
This matter was before the Court on the Plaintiff, Equal Employment Opportunity Commission’s (“EEOC”) Motion to Compel Agreed-Upon Form of Defendant SVT’s Discovery Responses. EEOC requested electronically stored information (“ESI”) held by Kronos, a third party hiring program that SVT used to allow applicants to apply online for positions in its stores, after identifying perceived deficiencies with SVT’s previous production of data held by Kronos. Kronos allowed SVT specific access to custom reports relevant to SVT’s online application program, but did not allow SVT access to the raw data used to generate those specific, custom reports. EEOC argued that, without this additional information from Kronos, it could not determine whether SVT could satisfy its discovery obligation. SVT argued that it did not have direct access to the raw data requested by EEOC, and that Kronos only provided it with a limited range of query and reporting capacity. Moreover, SVT argued that “the data, as kept in the ordinary course of SVT’s business and viewed through SVT’s views and reports, looks very different from how it is stored in Kronos’ proprietary format.” Kronos explained that it would cost $23,500 to generate a report that complies with EEOC’s discovery request. Federal Rule of Civil Procedure 34(b)(1)(C) states that a party requesting production of ESI “may specify the form or forms in which electronically store information is to be produced. Federal Rule of Civil Procedure 34(b)(2)(E) states the procedure that apply to producing ESI: (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same electronically stored information in more than one form. Federal Rule of Civil Procedure 26 states: A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. The court held that ”the data stored by Kronos that SVT can produce through the custom reports already available to it through its contract with Kronos is reasonably accessible, and must be produced in EEOC’s designated format.” The court also noted that any hiring decision made by SVT would have been based on the reports available to SVT from Kronos under their contract. Thus, the custom reports were kept by SVT in its usual course of business. However, the court held that the “data housed by Kronos in forms or reports that are not already available to SVT through the custom reports that Kronos set up for it is not reasonably accessible to SVT because of both undue burden and cost.” Furthermore, the court held that EEOC must bear all the cost of production that is not reasonably accessible to SVT through its reporting capabilities. Thus, the court concluded that if “EEOC want[ed] to obtain the data directly from Kronos as a customized program and report tailored specifically to the EEOC’s discovery request at the estimated cost of $23,500, the EEOC [would] have to pay the cost of the discovery.” In an effort to minimize motion practice, EEOC should have requested the specific, custom reports available to SVT by Kronos because any hiring decision would have been made after considering only those custom reports. It is not likely EEOC would have discovered any relevant information from ESI in a form that was not available to SVT. Aaron Cohen, a Seton Hall University School of Law student (Class of 2015), focused his studies in the area of Family Law. He participated in the Seton Hall Center for Social Justice’s Family Law Clinic. After graduation, he will clerk for a judge in the Superior Court of New Jersey, Family Division. Prior to law school, he was a 2011 cum laude graduate of The George Washington University Columbian College of Arts and Sciences, where he earned a B.A. in Psychology. Want to read more articles like this? Sign up for our post notification newsletter, here.
This incident arises under the premise that courts have allowed prevailing parties to recover the costs of converting paper documents into electronic files when the parties agreed that responses to discovery requests would be produced in an electronic format. The defendants sent the plaintiffs a bill for just over $65,000 for the costs of scanning nearly 450,000 documents they produced during discovery. While the judge did not exactly award that amount to defendants, he came extraordinarily close. The plaintiffs tried to fight the costs by arguing first that they were made in responding to discovery and thus unrecoverable, and second that they were produced for convenience and therefore unnecessary. The court was unpersuaded by either argument. Surveying the case law in the Fifth Circuit and other jurisdictions, the judge determined that the cost of scanning paper documents into an electronic format was equivalent to making copies. Notably, only scanning and file format conversion was considered equivalent, and not other activities including, for example: collecting and preserving ESI, processing and indexing ESI, and keyword searching ESI for responsive and privileged documents. That was precisely the reason the judge required supplemental briefing from the defendants and did not outright award the costs they sought. The defendants’ invoices may have included other unrecoverable costs, and in order to recover in the subsequent briefings they would need to show which specific costs were attributable to scanning or making copies. In a subsequent order, the judge did find the plaintiffs were responsible for over $50,000 of the defendants’ document production costs. In short, this case stands for the very simple proposition that “costs” includes “scanning” just as it also historically includes “photocopying.” Samuel is in the Seton Hall University School of Law Class of 2015 pursuing the Intellectual Property concentration. He received his master’s from the Rutgers Graduate School of Biomedical Sciences and became a registered patent agent prior to entering law school. Want to read more articles like this? Sign up for our post notification newsletter, here.