eDiscovery

When is Paper Proof Proper Preservation?

In April 2014, the Honorable Dominic J. Squatrito from the District Court for the District of Connecticut handed down a decision that dismissed all but one of plaintiff Ray Tedeschi’s claims against defendant Kason Credit Corporation (“KCC”), a collections agency that wrongfully targeted Tedeschi based on a telephone mix-up.  On Both parties moved for summary judgment on claims of invasion of privacy and intentional infliction of emotional distress.  Tedeschi’s claims were largely unsupportable – not the least of which being his assertion that Kason Credit Corporation should face an evidentiary adverse inference instruction based on spoliation of electronic evidence. In sum and substance, Tedeschi claimed that KCC was harassing Tedeschi with nearly twenty phone calls over the course of a yearlong period, seeking to collect a debt from a consumer who listed Tedeschi’s new home phone number as a means of contact.  Tedeschi continually informed KCC that he was not the debtor, and asked that KCC stop calling.  Tedeschi v. Kason Credit Corp., No. 3:10CV00612 DJS, 2014 WL 1491173 *2-3 (D. Conn. Apr. 15, 2014). KCC, on the other hand, denied the volume of calls asserted by the plaintiff, and instead asserted that only two phone calls took place over that same period of time.  Id.  KCC further alleged that the behavior met the standards of the Fair Debt Collection Practices Act, 15. U.S.C. § 1692, and was not actionable. Recognizing a dispute of fact, the Court left this claim intact.  However, it’s unlikely that Tedeschi’s claim will pass muster with any jury.  Here’s why: When deposing the CEO of KCC, Karl Dudek, plaintiff learned that a “fact sheet” was generated for Tedeschi’s matter that tracked calls from KCC employees to Tedeschi’s phone number.  In response to an inquiry, Dudek indicated that the fact sheet “has probably been printed out 20 times.” Id. at *16.  Tedeschi argued that the print-out produced at the time of the deposition did not satisfy discovery requirements, since the print-out was dated December 2010, and that the original print-out must have been destroyed. KCC was able to demonstrate that the print-out was unchanged in substance or form from the first request date in June 2010 to the produced copy in December 2010.  Relying on Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002), the court outlined the criteria for an adverse inference: the moving party must demonstrate that the party having control over the evidence had a duty to preserve it at the time of destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence would support the moving party’s claim or defense.  Judge Squatrito found that KCC did not have a duty to preserve print-outs, since the print-outs “merely duplicate ‘original evidence.’” Id. at *17.  Since Tedeschi was unable to support a claim that the electronic data was destroyed with any culpable state of mind, the claim necessarily fails.  See Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) (“A party . . . must retain all relevant documents[,] but not multiple identical copies[,] in existence at the time the duty to preserve attaches, and any relevant documents created thereafter.”). Plaintiff’s claims against KCC were doomed from the start, and Tedeschi would have been smart to see the writing on the wall – if not the words on the print-outs. Kevin received a B.S. in Political Science from the University of Scranton (2009), and will receive his J.D. from Seton Hall University School of Law in 2015.  Prior to joining the Seton Hall community, Kevin worked as an eDiscovery professional at two large “white-shoe” law firms in Manhattan. Want to read more articles like this?  Sign up for our post notification newsletter, here.

When Is the Sanction of An Adverse Inference Appropriate?

The sanction of an adverse inference is appropriate, but not mandatory, in cases involving the negligent destruction of evidence.  The court will determine on a case-by-case basis whether sanctions are appropriate where a party negligently destroyed evidence.  However, the court is more likely to impose sanctions when a discovery obligation is breached through bad faith or gross negligence rather than ordinary negligence.  In Schulman v. Saloon Beverage, Inc., Schulman (the “Plaintiff”) sued Saloon Beverage, Inc. (the “Defendant”) under Vermont’s Dram Shop Act for allegedly serving Mark Clarke, a drunken patron, four Sierra Nevada draft beers approximately ten minutes before he collided head on with the Plaintiff’s car.  The Defendant contended that Clarke was not at its saloon on the night of the accident.  The only documentary evidence available to prove Clarke was at the saloon were the records of checks because Clarke allegedly paid in cash.        The Plaintiff filed a Rule 37 motion seeking sanctions for failing to preserve or permitting the destruction of the checks.  The Plaintiff alleged that the Defendant failed to produce all of the check receipts for the night in question.  After the Defendant produced printed copies of all the check receipts, the Plaintiff then alleged that the Defendant destroyed or altered the evidence because the check receipts contradicted other evidence which showed that Clarke was at the saloon.  The Plaintiff wanted to prove that the Defendant altered the receipts by analyzing the electronically stored information (“ESI”) in original format; however, the computers were not preserved when the saloon went out of business.         The issue in this case concerned whether the Plaintiff established its spoliation claim against the Defendant for destroying the ESI.  A prerequisite to a spoliation claim is that the sought-after evidence actually existed and was destroyed.  In order to obtain an adverse inference instruction regarding the loss or destruction of evidence, a party must establish:  (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense. In Schuman, the Plaintiff established that the Defendant negligently destroyed the ESI.  There was no dispute that the check receipts were relevant because they involved the disputed issue of whether Clarke was at the saloon.  The court found that the Defendant either knew or should have known that the ESI would be relevant to litigation because the Defendant was on notice when the Plaintiff made a claim in the Defendant’s bankruptcy proceedings.  Furthermore, the court concluded that the ESI was destroyed through ordinary negligence, a culpable state of mind.  Although the Plaintiff established that the Defendant negligently destroyed the ESI, the court still held that an adverse inference instruction was not appropriate because the Plaintiff’s suggestion of prejudice was based on conjecture.  Instead of imposing the sanction, the court merely held that evidence of the destruction of the ESI may be admissible at trial. The sanction of an adverse inference is not mandatory in cases involving the negligent destruction of evidence.  The court has the discretion to determine whether the sanction is appropriate where a party negligently destroys evidence on a case-by-case approach.  A party seeking an adverse inference instruction should attempt to bolster its claim by establishing that the other party breached a discovery obligation through bad faith or gross negligence.      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.

Did the Budget For Electronic Copies Just Go Down?

When you think about making a copy, you may think of copying and pasting a document into a thumb drive or a folder in your documents.  You might also think about scanning a document and saving that copy as a PDF.  However, the question in many cases has become what is the price of that copy, and is it a cost that can be recovered. In the case of In Re Text Messaging Antitrust Litigation, the court addressed this very vague and unsettled question.  The court did so by accepting the rule previously set forth in Race Tires Am., Inc. v. Hoosier Racing Tire Corp.,[1] which basely states the following: The cost of making an electronic copy may be recovered, but costs that are unnecessary to making the actual copy will not be recovered. In other words, you may not recover for any extra enhancements made to ESI; however, you may recover any costs associated with the basic copy of the information.  Why is this frustrating?  Because technology presents numerous standard features which streamline and lower the cost of discovery that are deemed unnecessary enhancements under this rule. This case presents a perfect example of an enhancement that is deemed unnecessary in regards to making copies of electronic data.  The technology is called optical character recognition (OCR), which allows a computer to recognize text so that it may be copied, pasted, and searched.  The defendants assert that OCR is a necessary part of copying ESI in order to perform basic interactions with an electronic document (i.e., copying and pasting from the ESI copies). Most individuals assume that the ability to copy and paste data from an electronic document is standard; and as such, it logically follows that this would be a necessary part of making an electronic copy.  However, here, the court deemed that OCR is not a necessary part of making copies. Under this framework, even the commonplace technological advancements such as providing the ability to copy and paste from a copied electronic document are not seen as a necessary cost.  Therefore, the decision to utilize such technology is done on producing party’s own dime. In this case, the court cites Race Tires again stating, “gathering, preserving, processing, searching, culling, and extracting ESI simply do not amount to `making copies.'"  They further explained that only scanning and file format conversion could be considered under the small umbrella of “making copies.” Further, anything that can be deemed “processing" is also not seen as part of “making copies”.  The court even expands on this to say that even if the processing was “essential” to making an electronic copy “comprehensive and intelligible” the services of processing the data are not included in making copies, and therefore, will not be recoverable. The Court in this case does not specifically determine the award of costs, but rather directs the parties to resubmit a budget in compliance with these rules.  However, in the often cited Race Tires case, the court basically limited the awardable costs to only the scanning of hard copies, the conversion of files to appropriate formats, and the transfer of VHS tapes to DVDs. 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. [1] 674 F3d 158 (3d Cir. 2012).

Deleted Documents? Improper Withholding of Evidence?

Larry Klayman sued six separate journalist defendants for defamation. This case is about Klayman wanting more discovery from the defendants. Specifically, Klayman’s motion is to compel the production of documents and to hire a computer expert. In this case, Klayman has conceded the fact that he is a public figure. So, in order to win in a defamation suit, he must prove by clear and convincing evidence that the journalists published the statements about him with actual malice. Thus, Klayman made this discovery motion to try to obtain “any and all documents, discussions and/or publications that refer or relate in any way to Plaintiff Larry Klayman within the past five years,” as well as several other document requests. Klayman contends this information is relevant to state of mind of the journalists. However, the defendants represent that they have already provided Klayman with all relevant information. Based on this representation, the court denied Klayman’s request to compel document production. Klayman also petitioned for a computer retrieval expert to be hired to go through each defendant’s computer files. Klayman claimed that the defendants had improperly withheld documents. However, the court ruled that the plaintiff must show good cause in order to compel a forensic expert, and here he has failed to do so. The court further stated that his assertions were “conclusory and unpersuasive.” 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.

Protection For Blogs Can Stop Discovery On Personal Blogger Information!

This case involves ACT, a career guidance service firm that assists job seekers throughout their job search, suing Daniel Drasin, the administrator of a blog known as Random Convergence. According to ACT, Drasin exercises editorial control over the blog. ACT complains that the blog disparage ACT's services and damages ACT's business and reputation. On March 11, 2013, Magistrate Judge Kristin Mix granted ACT's motion to serve third party subpoenas on Drasin, demanding that he produce the name and contact information for each of the people who posted disparaging remarks on Drasin’s blog. On April 18, 2013, Drasin, then self-represented, filed a third-party motion to quash the subpoenas, stating that they violated the bloggers’ rights to First Amendment right to anonymous speech. He also argued that most individuals who posted comments on the Blog did so anonymously, and he explained that he had no records of those who chose to remain anonymous. The court sided with Drasin and quashed the subpoena. The court found that the Subpoena imposes two types of burden on Drasin. First, in order to comply with the subpoena, Drasin must surrender his personal hard drives to ACT for up to thirty days. Personal computers generally cannot function without their hard drives, so this requirement would force Drasin to spend up to thirty days without the use of his personal computer. Second, forcing Drasin to surrender his hard drives to ACT would give ACT access to Drasin's personal files. Moreover, ACT has alternative means to obtain the information it seeks, such as serving a subpoena on Google. The court also found persuasive that the benefits of the Subpoena appear to be minimal, as there is no indication in the record that Drasin possesses any information that would be relevant in the Colorado Action beyond that which he has already provided. The takeaway message is that subpoenas can be quashed if discovery imposes an undue burden, if the information is irrelevant to the action, and if there are other avenues from which the information can be obtained.   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

What Should a Party Not Do When Compelled to Turn Over Computers after Having Already Admitted How Much Activity Took Place on Those Computers? Turn Over Computers That Show No Record of Activity

It is never a good idea to raise the suspicions of the court. If a party is going to try to cover its tracks, it has to do so subtly and discretely. It certainly has to do a better job than Dr. O did in the above case. She revealed too much information about herself in the early stages of the case, and it came back to hurt her when it was time to produce discovery. MetLife has brought suit against Dr. O, after the doctor tried to make an insurance claim based on an alleged disability. First of all, Dr. O delayed her responses to initial discovery requests, which is just never a good idea! But not only that, it was subsequently discovered that she had email accounts containing relevant documents that she had not even previously disclosed! Needless to say, Dr. O has already lost all benefit of the doubt in this case. Dr. O was ordered to turn over the computers she used during the relevant period so that MetLife could perform a key word search. Instead of turning over all computers that she used, she turned over only the two computers that she owned. She claimed that she did not have access to all the computers she used anymore, because some were in Internet cafes she used while traveling. OK, fine, but even still, the computers she did turn over, the two computers she owned and presumably used most often, reflected very little activity! Her hard drives showed no evidence of her sending or receiving any emails during a five-year period. In addition, the hard drives reflected a minimal amount of Web browsing. Well that certainly piques the Court’s interest, especially in light of Dr. O’s earlier testimony in which she admitted to searching the Internet on a daily basis! So she searches the Web every single day, and yet there is no record of it on either of her personal computers? Suspicions have been officially raised! But it does not end there. Dr. O specifically testified at her deposition that she used her personal computer (one of the two she handed over) to type up a twenty two-page letter complaining about MetLife. Well, lo and behold, there is no record of this letter reflected in the personal documents on the computers she turned over. So now Dr. O has been caught in a direct lie! But wait, there’s more! Dr. O testified that she engaged in online banking…but the computers show no record of that, either. She also admitted to doing a lot of online shopping as a symptom of her depression and PTSD. And yet, there is nothing on her computers that is consistent with even a single purchase! Dr. O was not subtle and discrete in covering her tracks, and the court saw right through it. It explained that in light of earlier testimony that the doctor is an avid computer user, the lack of use on the computers she turned over demonstrates that she did not provide all of her principal computers. The court found that Dr. O willfully failed to comply with the court’s orders compelling production, and that this refusal was done in bad faith, prejudicing MetLife’s ability to present its case. Therefore, due to the extent and continued nature of non-compliance on the part of Dr. O, the court imposed an adverse inference instruction against the doctor. Again, this just goes to show that a party has to be more careful than Dr. O was in this case. It cannot claim to use computers all day, every day, and then respond to an order of production of these computers by turning over computers that reflect very little, if any, use. Dr. O was too obvious about what she was doing, and the court sanctioned her for it. Do not be like Dr. O! Logan Teisch received his B.A. in Government and Politics from the University of Maryland, College Park in 2012. He is now a student at Seton Hall University School of Law (Class of 2015), focusing his studies in the area of criminal law. Logan’s prior experiences include interning with the Honorable Verna G. Leath in Essex County Superior Court as well as interning with the Essex County Prosecutor’s Office. Want to read more articles like this?  Sign up for our post notification newsletter, here.

When Responding to Document Requests, What Format Must the Documents Be Produced In? If the Requesting Party Specifies a Format, Documents Must Be Produced In the Format Specified

In this case, a non-profit corporation, National Jewish Health, is suing WebMD. A very important sub-issue arose in this case regarding electronically stored information requested by the plaintiff during discovery. The plaintiff issued very broad discovery and interrogatory requests regarding emails between employees of the defendant. Because of the complexity of the electronic discovery at issue, the presiding judge, Daniel Y. Wiley, appointed Ronald J. Hedges as a special master to give a recommendation regarding electronic discovery. WebMD uses Enterprise Vault to maintain its email. This system is very useful because it preserves all emails sent by employees to prevent the emails from being altered or destroyed. This system also allowed the IT department of WebMD to search and sort the emails received and sent by specific employees. Using an eDiscovery tool in Enterprise Vault, the IT department of WebMD produced emails generated by the search criteria provided by WebMD’s legal team. WebMD’s counsel produced the emails in one of the following formats: Individual native files with attachments extracted; .DAT file using standard concordance delimiters and containing metadata (standard fields) for the above mentioned native files; and Text files/OCR for each native file provided as individual text files with a text path provided in the .DAT file. Additionally, all the emails produced are fully text searchable, sortable, and paired with all metadata. National Jewish Health (NJH) submitted a motion for sanctions against WebMD because they received roughly 280,000 documents as a result of their document request. NJH viewed this as a data dump and claimed there were over 100,000 duplicate files produced. But as it turned out, WebMD had already filtered the documents for duplicates and NJH could not prove that it had even conducted searches of the documents. Additionally, all documents produced by WebMD were in their native format, or an otherwise usable format. As a result, NJH’s motion for sanctions was denied. Another notable issue in this case is regarding WebMD’s storage of employee emails because an individual must serve as the custodian of the emails. Judge Wiley stated that, “a company, through its IT department, can serve as the custodian of electric files stored on company servers.” Since WebMD saved its emails on the Enterprise Vault, NJH has no argument as to custodianship. The final issue raised in this case is regarding NJH interrogatories. WebMD objected to the interrogatories as being overbroad and burdensome because the interrogatories requested the sorting and labeling of documents. Instead of answering the interrogatories, WebMD instead turned over their business records, which is acceptable under the rules. The purpose of this option to produce documents in the usual course of business is to place the burden of research on the party seeking the information, instead of requiring the responding party to conduct a burdensome or expensive search of its own records. Judge Wiley stated that the interrogatory requests were in fact overly burdensome as WebMD is not required to sort and label documents. Daniel received a B.A. in Criminology and Criminal Justice from The University of Maryland. He will receive his J.D. from Seton Hall University School of Law in 2015. Presently Daniel is serving as a legal intern in Seton Hall’s Juvenile Justice Clinic. After graduation Daniel will clerk for a trial judge in the Superior Court of New Jersey. Want to read more articles like this?  Sign up for our post notification newsletter, here

When Do Private, Personal Devices Become Discoverable During Litigation?

Last summer the District Court for the Northern District of Illinois decided a case that allows your old boss into your home.  Well . . . not literally.  Magistrate Judge Geraldine Soat Brown granted a motion to compel discovery for a plaintiff-employer over objection of defendant-employee.  The plaintiff, Network Cargo Systems U.S.A., Inc. claimed that its former employee, Caroline Pappas, stole proprietary technology and destroyed other electronic data upon termination.  Plaintiff denied the request, and consented to limited discovery.  After expedited discovery took place, plaintiff returned to the court requesting that an independent technology investigator be granted access to all of Ms. Pappas’s electronic devices. The court ordered defendant’s counsel to “determine what electronic devices [Pappas] used between 4/1/13 [2 months before termination] and 2/14/14 [the hearing date].” Network Cargo Sys. U.S.A., Inc. v. Pappas, No. 2014 WL 1856773 *2 (N.D. Ill. May 7, 2014).  A week later, counsel indicated six devices: two personal computers, an iPad, an iPhone, a Blackberry (which was returned to Network), and a work laptop provided by defendant’s new employer. After the court’s order, the parties agreed to split the cost of imaging three personal devices: the personal computers and the iPad.  Once the imaging was performed by the independent consultant, it was determined that three previously undisclosed flash drives had been connected to defendant’s personal computers during the relevant time frame.  Id.  The plaintiff demanded immediate access to those flash drives, as they may contain relevant evidence. The court agreed, even though the initial connection of the flash drives to the personal computers happened months after the employee was terminated from Network.   The court insisted that plaintiff pay the full cost of imaging the additional devices, though, stating “[t]he likelihood that Pappas was using these flash drives to transfer Network’s confidential information would seem to become more remote with the passage of time.” Id. at *3. Defendant Pappas was forced to turn over flash drives and personal computers.  While the target of the investigation is possible stolen proprietary material, through forensic imaging the independent consultant had access to each and every file on the device.  Perhaps Pappas can take solace in the fact that her iPhone wasn’t subject to discovery, as the device likely contains more sensitive data than just high scores to Candy Crush. Kevin received a B.S. in Political Science from the University of Scranton (2009), and will receive his J.D. from Seton Hall University School of Law in 2015.  Prior to joining the Seton Hall community, Kevin worked as an eDiscovery professional at two large “white-shoe” law firms in Manhattan. Want to read more articles like this?  Sign up for our post notification newsletter, here.

When Should A Plaintiff Withdraw Its Motion For A Protective Order?

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.

When Does A Party Have to Produce ESI In Native Format?

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.

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