e-Discovery Docket Sheet

In a patent-infringement case, the plaintiffs sought to compel production of documents in native format with original metadata. The plaintiffs asserted that native-production format was mandated by a local patent rule that required a party defending a patent-infringement claim to make available '[s]ource code, specifications, schematics, flow charts, artwork, formulas, or other documentation ' ' Finding that the defendants had failed to offer relevant reasons why the documents should not be produced in their native format, the court granted the motion and ordered the defendants to 'produce the documents in their native file format, with original metadata.' The court further declared that the document-production set 'shall be separately identified by Bates numbers to correspond to each aspect or element of each accused instrumentality identified in [the defendant's patent] chart.' Nova Measuring Instruments Ltd. v. Nanometrics, Inc., 417 F.Supp.2d 1121, 2006 WL 524708 (N.D. Cal. Mar. 6, 2006).

Alleging wrongful termination from employment, the plaintiff moved to compel production of documents previously scanned onto three CDs and produced by the defendants. Stating that this production was not 'kept in any perceivable sequential order,' the plaintiff claimed that it did not comply with the 'usual course of business' requirement of Fed.R.Civ.P. 34(b). Agreeing with the plaintiff, the court found it 'clear that the documents produced by [the defendants] were not produced 'as they are kept in the usual course of business.” According to the court, the production was problematic as 'a receiving party may not be able to determine which specific images comprise a single document or attachments to a document since there are no staples which bind together the scanned images as they would hard copies in a file.' The court noted that other courts had required a producing party to label, organize or index electronic documents to make them usable by a requesting party. Methods referenced by the court included: 1) noting which documents were produced from electronic files and which were scanned from hard-copy files; 2) maintaining multi-page documents as a unit; and 3) providing source information to identify document custodians. Nevertheless, the court denied the plaintiff's motion, based on the plaintiff's failure to file the motion in a timely manner. Bergersen v. Shelter Mut. Ins. Co., 2006 WL 334675 (D. Kan. Feb. 14, 2006).

The respondents, a non-party subpoenaed by the defendant, petitioned for a certificate of interlocutory appeal and sought to stay enforcement of a magistrate's order allowing the defendant to conduct a forensic review of the respondents' computer systems. The reviewing magistrate found the issue was not ripe for appeal and that the respondents had waived any appeal rights by failing to raise the issue in their initial appeal. The court declared that the enforcement orders took 'every measure to protect' the respondents because the defendant was bearing discovery costs and discovery was to be conducted on an 'attorneys-eyes-only' basis. The court also noted that the attorney-client privilege was not compromised because the respondents' counsel would have access to the master data and an opportunity to create a privilege log. The reviewing magistrate stated that: 'Respondents have complained throughout this proceeding of the burden being imposed on them. Instead of lessening that burden by cooperating in discovery, they have fought a Stalingrad defense costing untold thousands of dollars in attorney fees and providing increased evidence that they have something to hide.' Electrolux Home Prods., Inc. v. Whitesell Corp., 2006 WL 355453 (S.D. Ohio Feb. 15, 2006).

Defendant Ordered to Produce Data in
Native Format With Original Metadata

In a patent-infringement case, the plaintiffs sought to compel production of documents in native format with original metadata. The plaintiffs asserted that native-production format was mandated by a local patent rule that required a party defending a patent-infringement claim to make available '[s]ource code, specifications, schematics, flow charts, artwork, formulas, or other documentation ' ' Finding that the defendants had failed to offer relevant reasons why the documents should not be produced in their native format, the court granted the motion and ordered the defendants to 'produce the documents in their native file format, with original metadata.' The court further declared that the document-production set 'shall be separately identified by Bates numbers to correspond to each aspect or element of each accused instrumentality identified in [the defendant's patent] chart.' Nova Measuring Instruments Ltd. v. Nanometrics, Inc. , 417 F.Supp.2d 1121, 2006 WL 524708 (N.D. Cal. Mar. 6, 2006).

Alleging wrongful termination from employment, the plaintiff moved to compel production of documents previously scanned onto three CDs and produced by the defendants. Stating that this production was not 'kept in any perceivable sequential order,' the plaintiff claimed that it did not comply with the 'usual course of business' requirement of Fed.R.Civ.P. 34(b). Agreeing with the plaintiff, the court found it 'clear that the documents produced by [the defendants] were not produced 'as they are kept in the usual course of business.” According to the court, the production was problematic as 'a receiving party may not be able to determine which specific images comprise a single document or attachments to a document since there are no staples which bind together the scanned images as they would hard copies in a file.' The court noted that other courts had required a producing party to label, organize or index electronic documents to make them usable by a requesting party. Methods referenced by the court included: 1) noting which documents were produced from electronic files and which were scanned from hard-copy files; 2) maintaining multi-page documents as a unit; and 3) providing source information to identify document custodians. Nevertheless, the court denied the plaintiff's motion, based on the plaintiff's failure to file the motion in a timely manner. Bergersen v. Shelter Mut. Ins. Co., 2006 WL 334675 (D. Kan. Feb. 14, 2006).

The respondents, a non-party subpoenaed by the defendant, petitioned for a certificate of interlocutory appeal and sought to stay enforcement of a magistrate's order allowing the defendant to conduct a forensic review of the respondents' computer systems. The reviewing magistrate found the issue was not ripe for appeal and that the respondents had waived any appeal rights by failing to raise the issue in their initial appeal. The court declared that the enforcement orders took 'every measure to protect' the respondents because the defendant was bearing discovery costs and discovery was to be conducted on an 'attorneys-eyes-only' basis. The court also noted that the attorney-client privilege was not compromised because the respondents' counsel would have access to the master data and an opportunity to create a privilege log. The reviewing magistrate stated that: 'Respondents have complained throughout this proceeding of the burden being imposed on them. Instead of lessening that burden by cooperating in discovery, they have fought a Stalingrad defense costing untold thousands of dollars in attorney fees and providing increased evidence that they have something to hide.' Electrolux Home Prods., Inc. v. Whitesell Corp., 2006 WL 355453 (S.D. Ohio Feb. 15, 2006).