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e-Discovery Docket Sheet
Court Says .TIFF Production Fails to
Satisfy Rule 34 Discovery Obligations
In a case involving a patent-infringement claim, the plaintiff sought to compel native-file production of compact discs, floppy discs and DVDs. Despite the plaintiff's protests, the defendants converted responsive electronic information to .TIFF images, downloaded the images onto CDs and delivered the CDs to the plaintiff. The defendants argued that they satisfied their Federal Rule of Civil Procedure (FRCP) 34 discovery obligations by producing the documents in .TIFF format. Objecting, the plaintiff asserted that the .TIFF production lacked clarity, color and metadata, that the file format made it difficult to determine which pages were part of one document, that they lacked clear indications as to which documents were stored together, and that the format made quick and efficient searching impossible. Although the defendants asserted that they converted the documents to .TIFF format to add Bates numbers, the court found this argument unpersuasive. The court granted the plaintiff's motion, noting that the .TIFF production did 'not contain all of the relevant, non-privileged information,' that it lacked metadata, e-mail attachments and recipients, and that the data were not produced in the 'usual course of business.' Hagenbuch v. 3B6 Sistemi Elettronici Industriali S.R.L., 2006 WL 665005 (N.D. Ill. Mar. 8, 2006).
Sanctions Granted for Failure to
Comply with Preservation Order
In a copyright-infringement lawsuit, the plaintiff moved for sanctions, claiming that the defendants had failed to comply with a preservation order. The preservation order required the defendants to 'preserve all relevant documents as defined under FRCP 34(a), including but not limited to all electronic evidence or evidence stored on computers regardless of the medium on which it is stored.' Upon inspecting five of the defendants' 40 servers, a computer-forensics expert found that the operating systems on three of the servers had been reinstalled after the preservation order was issued. The defendants claimed that they reinstalled the operating systems to test and install new software. Although finding an adverse-inference instruction was not warranted, the court ordered the defendants to bear the cost of analyzing the remaining servers. The court concluded that 'the failure of [the defendants and their] counsel to take affirmative steps to comply with the Preservation Order ' which would have caused [the defendants] not to reinstall the operating systems on the servers at issue ' is evidence of at least some degree of bad faith.' Creative Sci. Sys., Inc. v. Forex Capital Mkts., LLC, 2006 WL 870973 (N.D. Cal. Apr. 4, 2006).
Non-party Ordered To Search Database
And Produce Relevant Electronic Documents
The plaintiff sought to compel production of documents from a non-party in a patent-infringement case. Objecting, the non-party claimed that the request was overbroad, burdensome and not relevant to the issues in the litigation. In response, the plaintiff asserted that the production merely required the non-party to produce documents from existing electronic databases of documents, previously created for a government investigation. The plaintiff also argued that the non-party needlessly delayed its response by failing to agree to a list of search terms proffered during the parties' meet-and-confer conference. The court ordered the non-party to 'produce on DVD-ROMS or hard drive documents derived using specific search terms from databases created for the U.S. Department of Justice investigation of the DRAM [dynamic random access memory] industry and any related preceding litigation in which the [non-party was] a party.' In addition, the court directed the plaintiff to review the documents for responsiveness and to obtain third-party permission for use of any responsive documents. Tessera, Inc. v. Micron Tech., Inc. 2006 WL 733498 (N.D. Cal. Mar. 22, 2006).
e-Discovery Docket Sheet was written by Michele C.S. Lange, a staff attorney with Kroll Ontrack, with assistance from Charity Delich and Melanie Bradshaw, Kroll Ontrack law clerks. Lange has published numerous articles and speaks regularly on the topics of electronic discovery, computer forensics and technology's role in the law. Information in these summaries is taken from the Kroll Ontrack monthly E-Discovery Case Law Update and Computer Forensics newsletters, which may be accessed at http://www.krollontrack.com/. Lange is a member of e-Discovery Law & Strategy's Board of Editors and may be reached at [email protected].
Court Says .TIFF Production Fails to
Satisfy Rule 34 Discovery Obligations
In a case involving a patent-infringement claim, the plaintiff sought to compel native-file production of compact discs, floppy discs and DVDs. Despite the plaintiff's protests, the defendants converted responsive electronic information to .TIFF images, downloaded the images onto CDs and delivered the CDs to the plaintiff. The defendants argued that they satisfied their Federal Rule of Civil Procedure (FRCP) 34 discovery obligations by producing the documents in .TIFF format. Objecting, the plaintiff asserted that the .TIFF production lacked clarity, color and metadata, that the file format made it difficult to determine which pages were part of one document, that they lacked clear indications as to which documents were stored together, and that the format made quick and efficient searching impossible. Although the defendants asserted that they converted the documents to .TIFF format to add Bates numbers, the court found this argument unpersuasive. The court granted the plaintiff's motion, noting that the .TIFF production did 'not contain all of the relevant, non-privileged information,' that it lacked metadata, e-mail attachments and recipients, and that the data were not produced in the 'usual course of business.' Hagenbuch v. 3B6 Sistemi Elettronici Industriali S.R.L., 2006 WL 665005 (N.D. Ill. Mar. 8, 2006).
Sanctions Granted for Failure to
Comply with Preservation Order
In a copyright-infringement lawsuit, the plaintiff moved for sanctions, claiming that the defendants had failed to comply with a preservation order. The preservation order required the defendants to 'preserve all relevant documents as defined under FRCP 34(a), including but not limited to all electronic evidence or evidence stored on computers regardless of the medium on which it is stored.' Upon inspecting five of the defendants' 40 servers, a computer-forensics expert found that the operating systems on three of the servers had been reinstalled after the preservation order was issued. The defendants claimed that they reinstalled the operating systems to test and install new software. Although finding an adverse-inference instruction was not warranted, the court ordered the defendants to bear the cost of analyzing the remaining servers. The court concluded that 'the failure of [the defendants and their] counsel to take affirmative steps to comply with the Preservation Order ' which would have caused [the defendants] not to reinstall the operating systems on the servers at issue ' is evidence of at least some degree of bad faith.' Creative Sci. Sys., Inc. v. Forex Capital Mkts., LLC, 2006 WL 870973 (N.D. Cal. Apr. 4, 2006).
Non-party Ordered To Search Database
And Produce Relevant Electronic Documents
The plaintiff sought to compel production of documents from a non-party in a patent-infringement case. Objecting, the non-party claimed that the request was overbroad, burdensome and not relevant to the issues in the litigation. In response, the plaintiff asserted that the production merely required the non-party to produce documents from existing electronic databases of documents, previously created for a government investigation. The plaintiff also argued that the non-party needlessly delayed its response by failing to agree to a list of search terms proffered during the parties' meet-and-confer conference. The court ordered the non-party to 'produce on DVD-ROMS or hard drive documents derived using specific search terms from databases created for the U.S. Department of Justice investigation of the DRAM [dynamic random access memory] industry and any related preceding litigation in which the [non-party was] a party.' In addition, the court directed the plaintiff to review the documents for responsiveness and to obtain third-party permission for use of any responsive documents. Tessera, Inc. v. Micron Tech., Inc. 2006 WL 733498 (N.D. Cal. Mar. 22, 2006).
e-Discovery Docket Sheet was written by Michele C.S. Lange, a staff attorney with Kroll Ontrack, with assistance from Charity Delich and Melanie Bradshaw, Kroll Ontrack law clerks. Lange has published numerous articles and speaks regularly on the topics of electronic discovery, computer forensics and technology's role in the law. Information in these summaries is taken from the Kroll Ontrack monthly E-Discovery Case Law Update and Computer Forensics newsletters, which may be accessed at http://www.krollontrack.com/. Lange is a member of e-Discovery Law & Strategy's Board of Editors and may be reached at [email protected].
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