e-Discovery Docket Sheet

In a defamation action alleging that the defendants had engaged in a 'smear campaign' and destroyed his career, the plaintiff moved to compel the defendants to: 1) preserve electronic and paper data, 2) answer questions about their electronic data-management practices, and 3) produce all accessible and responsive data. Before filing the motion, the plaintiff's counsel sent defense counsel a proposed e-discovery preservation order that included provisions for exchanging document-retention policy information, identifying a deposition witness with computer-system knowledge and preserving all relevant electronic data. The proposed order also declared that accessible data would be produced in its native format and that inaccessible data would be identified but not immediately produced. Declining to agree to the order, defense counsel stated that they would abide by their preservation obligations under the Federal Rules of Civil Procedure. They also argued that the proposed order was onerous and that it was inappropriate to consider production format in the absence of specific production requests. Although the court found that a preservation order would be unduly burdensome and premature at that point in the litigation, the court ordered the defendants to answer the electronic data-management questions as if they were
interrogatories. The court also ordered the defendants to search for relevant data and provide the plaintiff with a detailed explanation of the search protocol. The court then found that native production was appropriate, because the defendant had failed to offer a substantive basis for its objection to native format. Treppel v. Biovail Corp., 2006 WL 278170 (S.D.N.Y. Feb. 6, 2006)

In a class action lawsuit, the plaintiffs requested records relating to the defendants' time-keeping, payroll, and policies and procedures. The defendants produced some time-keeping records but failed to produce the other requested information, including data contained on 148 compact discs. The defendants claimed that producing the compact discs would reveal private employee data and stated that they would produce paper records containing the relevant information. Observing that the paper production would comprise 46 boxes and approximately 36,000 pages, the court declared, 'There seems little doubt that the time and cost expenditure could be disproportionate to the interests sought to be protected.' The court contrasted this with an electronic review in which the 'plaintiffs could make duplicates of the computer discs quickly and inexpensively. These discs could then be reviewed in a more efficient manner and the sensitive information skipped by the reviewer(s).' The court also assured that confidentiality concerns would be covered in a confidentiality order. Gilliam v. Addicts Rehab. Ctr. Fund, Inc., 2006 WL 228874 (S.D.N.Y. Jan. 26, 2006).

The defendant sought to dismiss a disability-benefits lawsuit on the grounds that the plaintiff, a former trial lawyer, had failed to meet his discovery obligations. During discovery, the defendant suspected that the plaintiff failed to produce all requested information. Upon issuing a subpoena to the plaintiff's employee and fianc'e, the defendant received electronic documents that the plaintiff previously claimed did not exist. The plaintiff claimed that the omission was innocent and stated that he had directed his accountant to gather the requested documents and give the defendant 'everything.' According to the plaintiff, the accountant either failed to understand the scope of the demand or the obligations that it imposed. In addressing the dispute, the court declared that the plaintiff's claim 'that he is so computer illiterate that he could not comply with production is frankly ludicrous.' The court asserted that the plaintiff, as an attorney, should have understood his obligations and should not have relied on his accountant to fulfill his duties. Although declining to dismiss the case, the court directed the plaintiff to reimburse the defendant for its reasonable expenses, including attorney's fees. Martin v. Northwestern Mut. Life Ins. Co., 2006 WL 148991 (M.D. Fla. Jan. 19, 2006).

In response to the plaintiffs' interrogatories, the defendants produced 1,771 pages of Bates-stamped documents from a database. Claiming that this production was 'indecipherable' and failed to adequately answer their interrogatories, the plaintiffs moved to compel complete production of the database information. In resolving the matter, the court stated that the raw data would be more easily used in conjunction with its corresponding database. The court further determined that the defendants were in the best position to accurately interpret and explain the information. Thus, the court ordered the defendants to produce the data in a 'more usable form,' noting that the Federal Rule Advisory Committee notes specified that a party may be ordered to produce information to aid in interpreting and explaining the data even when the electronic information does not exist in the format requested. Powerhouse Marks, L.L.C. v. Chi Hsin Impex, Inc., 2006 WL 83477 (E.D. Mich. Jan. 12, 2006).

Defendant Ordered to Search and
Produce Relevant e-Documents

In a defamation action alleging that the defendants had engaged in a 'smear campaign' and destroyed his career, the plaintiff moved to compel the defendants to: 1) preserve electronic and paper data, 2) answer questions about their electronic data-management practices, and 3) produce all accessible and responsive data. Before filing the motion, the plaintiff's counsel sent defense counsel a proposed e-discovery preservation order that included provisions for exchanging document-retention policy information, identifying a deposition witness with computer-system knowledge and preserving all relevant electronic data. The proposed order also declared that accessible data would be produced in its native format and that inaccessible data would be identified but not immediately produced. Declining to agree to the order, defense counsel stated that they would abide by their preservation obligations under the Federal Rules of Civil Procedure. They also argued that the proposed order was onerous and that it was inappropriate to consider production format in the absence of specific production requests. Although the court found that a preservation order would be unduly burdensome and premature at that point in the litigation, the court ordered the defendants to answer the electronic data-management questions as if they were
interrogatories. The court also ordered the defendants to search for relevant data and provide the plaintiff with a detailed explanation of the search protocol. The court then found that native production was appropriate, because the defendant had failed to offer a substantive basis for its objection to native format. Treppel v. Biovail Corp., 2006 WL 278170 (S.D.N.Y. Feb. 6, 2006)

In a class action lawsuit, the plaintiffs requested records relating to the defendants' time-keeping, payroll, and policies and procedures. The defendants produced some time-keeping records but failed to produce the other requested information, including data contained on 148 compact discs. The defendants claimed that producing the compact discs would reveal private employee data and stated that they would produce paper records containing the relevant information. Observing that the paper production would comprise 46 boxes and approximately 36,000 pages, the court declared, 'There seems little doubt that the time and cost expenditure could be disproportionate to the interests sought to be protected.' The court contrasted this with an electronic review in which the 'plaintiffs could make duplicates of the computer discs quickly and inexpensively. These discs could then be reviewed in a more efficient manner and the sensitive information skipped by the reviewer(s).' The court also assured that confidentiality concerns would be covered in a confidentiality order. Gilliam v. Addicts Rehab. Ctr. Fund, Inc., 2006 WL 228874 (S.D.N.Y. Jan. 26, 2006).

The defendant sought to dismiss a disability-benefits lawsuit on the grounds that the plaintiff, a former trial lawyer, had failed to meet his discovery obligations. During discovery, the defendant suspected that the plaintiff failed to produce all requested information. Upon issuing a subpoena to the plaintiff's employee and fianc'e, the defendant received electronic documents that the plaintiff previously claimed did not exist. The plaintiff claimed that the omission was innocent and stated that he had directed his accountant to gather the requested documents and give the defendant 'everything.' According to the plaintiff, the accountant either failed to understand the scope of the demand or the obligations that it imposed. In addressing the dispute, the court declared that the plaintiff's claim 'that he is so computer illiterate that he could not comply with production is frankly ludicrous.' The court asserted that the plaintiff, as an attorney, should have understood his obligations and should not have relied on his accountant to fulfill his duties. Although declining to dismiss the case, the court directed the plaintiff to reimburse the defendant for its reasonable expenses, including attorney's fees. Martin v. Northwestern Mut. Life Ins. Co., 2006 WL 148991 (M.D. Fla. Jan. 19, 2006).

In response to the plaintiffs' interrogatories, the defendants produced 1,771 pages of Bates-stamped documents from a database. Claiming that this production was 'indecipherable' and failed to adequately answer their interrogatories, the plaintiffs moved to compel complete production of the database information. In resolving the matter, the court stated that the raw data would be more easily used in conjunction with its corresponding database. The court further determined that the defendants were in the best position to accurately interpret and explain the information. Thus, the court ordered the defendants to produce the data in a 'more usable form,' noting that the Federal Rule Advisory Committee notes specified that a party may be ordered to produce information to aid in interpreting and explaining the data even when the electronic information does not exist in the format requested. Powerhouse Marks, L.L.C. v. Chi Hsin Impex, Inc., 2006 WL 83477 (E.D. Mich. Jan. 12, 2006).