Last month, Magistrate Judge David J. Waxse decided an issue that we likely will see more of in the age of big data. He rejected a defendant’s undue burden argument even though even though the “data warehouses” at issue contained over 100 terabytes of data and the production would take several months to develop a process to extract and pull the data in the manner requested by the plaintiffs. In addition to that case, there were key cases in November involving BYOD issues, cooperation, the form of production, and spoliation.
Bring your own device (BYOD)
Ewald v. Royal Norwegian Embassy, No. 11-cv-2116 (D. Minn. Nov. 20, 2013). In my summary of key October cases, I discussed how the magistrate judge in this case denied the plaintiff’s motion to compel discovery, including a request for forensic images of certain laptops, phones, memory cards and tablets. The district court judge largely affirmed the magistrate judge’s order but reversed the order as it related to the discovery of text messages and voice messages contained on two work-provided mobile phones. The court held that the plaintiff was entitled to receive responsive text messages and voice messages contained on the mobile phone the defendant-employer provided to her and another employee. Accordingly, the court ordered the parties to meet and confer and agree on a protocol to conduct a search for responsive text messages and voice messages contained on their work-provided mobile phones used between Nov. 1, 2008 and Nov. 1, 2011. Interestingly, the court refused to order the production of the work-provided mobile phones of 10 other employees of the defendant and further held that it would not order the production of any witness’s personal mobile device or allow an extension of time to subpoena those devices. The court reasoned that the plaintiff had failed to show that any relevant information was likely to exist on those devices.
Big data/undue burden
Harlow v. Sprint Nextel Corp., No. 08-2222 (D. Kan. Nov. 26, 2013). The defendant in a class action lawsuit brought by its former employees argued that it would be unduly burdensome to produce information contained in two “data warehouses” because the requested data sets contained approximately 108 terabytes of data and it would take several months to develop a process to extract and pull the data in the manner requested. Citing to Civil Rule 26(b)(2)(B), Magistrate Judge Waxse stated that the defendant bore the burden of showing that the data at issue was “not reasonably accessible because of undue burden or cost.” Applying this standard, the court held that the defendant failed to show that the requested production was “unduly” burdensome even though the data warehouses contained many terabytes of data and “its production would require the development of a special data query to pull the requested data.” Instead, the court thought the parties could work together in good faith and in a cooperative manner to find an agreed solution that would narrow the size of the data set and the costs and time needed to produce the requested data.
Cooperation
Saliga v. Chemitura Corp., No. 12-832 (D. Conn. Nov. 25, 2013). Speaking of cooperation, the court here opened its decision by stressing that “the best solution in the entire area of electronic discovery is cooperation among counsel” and that discussions between counsel about ESI should begin early in the case. Because the parties had not cooperated and had spent almost a year just trying to agree on how the defendant should search and produce its emails, the court stepped in and resolved the parties’ dispute regarding what search terms the defendant should use. The court also granted the plaintiff’s request to have the defendant produce its emails in native format because the defendant could not show any compelling reasons why it could not produce its emails this way. The court declined, however, to order the defendant to provide the plaintiff with specific information regarding the defendant’s “data collection process information, source information, custodian information, or software information.” Instead, the court told counsel that they should discuss these issues cooperatively. “In the (hopefully unlikely) event that counsel are unable to resolve the plaintiff’s concerns through cooperation, the plaintiff may propound specific discovery requests in accordance with the rules.”
Ruiz-Bueno v. Scott, No. 12-cv-0809 (S.D. Ohio Nov. 15, 2013). Stressing the “need to cooperate,” the court here took the step that was threatened in the Saliga case. The court ordered the defendants to answer an interrogatory asking them to explain “what procedures or methods were used to search for responsive electronically stored information, or ESI” because the plaintiffs’ concern about the volume of ESI produced appeared to be reasonably grounded and the defendants “were less than forthcoming with information needed to make further discussion of the issue a collaborative rather than contrarian process.” This case is discussed in more detail here.
Form of production
RPM Pizza, LLC, d/b/a Domino’s Pizza v. Argonaut Great Central Insurance Co., No. 10-684 (M.D. La. Nov. 15, 2013). The court ordered the defendant to produce ESI in the form specified by the plaintiff because the defendant failed to raise a proper and timely format objection. The plaintiff instructed the defendant to produce all audio files, video files, database files and PowerPoint presentations in native form and all other electronic documents as single page TIFF images with certain corresponding metadata. The plaintiff also instructed the defendant to produce all parents and attachments for responsive documents. The defendant did not specifically object to the form of production when it served its responses and argued that the plaintiff needed to show why producing a searchable PDF was not sufficient. The court rejected that argument, stating: “Finally, Argonaut argued that even if Domino’s did not waive its right to object to the format, it has not shown why it is necessary for Argonaut to produce documents in a format that complies with [the plaintiff’s instruction]. The simple answer is that Domino’s is not required to do so. As provided under Rule 34(b)(2)(E), Domino’s properly included an instruction specifying the form for producing ESI and Argonaut waived any objection by not asserting it timely.”
Crissen v. Gupta, No. 12-355 (S.D. Ind. Nov. 7, 2013). Even though the plaintiff in this case did not request the production of ESI in native format, as the plaintiffs in Saliga and RPM Pizza did, the court held that the plaintiff was entitled to receive documents in Word format and not in PDF format if the defendant had access to the documents in Word format before receiving the plaintiff’s document request. Rule 34 cautions that “[a] party must produce documents as they are kept in the usual course of business” and that “[i]f 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.” According to the court, this means that “a requesting party’s obligation to specify a format for production is superseded by a responding party’s obligation to refrain from converting any of its electronically stored information to a different format that would make it more difficult or burdensome for the requesting party to use.”
If you’re looking for more information about the form of production, e-discovery lawyer and certified computer forensic examiner Craig Ball recently posted an interesting blog article about this topic and keeping up with technology.
Spoliation/sanctions
Zest IP Holdings, LLC v. Implant Direct Mfg., LLC, No. 10-541 (S.D. Cal. Nov. 25, 2013). In a patent and trademark infringement case, the court ordered an adverse inference jury instruction and monetary sanctions against the defendants for the spoliation of evidence. In 2008, the defendants notified the plaintiffs that they planned to make their own product to compete with the plaintiffs’ product they had been distributing. The plaintiffs considered the planned product to be a knockoff and advised the defendants that they would file a lawsuit for patent infringement if the defendants continued with their plan. Despite acknowledging receipt of the letter and continuing with their plan, the defendants did not implement a litigation hold until the plaintiffs filed a lawsuit in 2010. The defendants argued that they did not have a duty to implement a hold because the plaintiffs did not ask them to save any documents, the defendants did not believe there would be litigation, and the defendants had a company policy that “no documents are to be deleted” and did not believe any of their employees would delete company documents. The plaintiffs produced evidence showing that the defendants’ director of design engineering deleted emails from her work account and a personal account that she also used for work purposes and that the defendants’ president and CEO had six different email accounts that he failed to preserve properly. Based on the plaintiffs’ showing, the court invoked its inherent power to sanction the defendants for spoliation.
