Thursday, January 24, 2008

2008-01-24 Be Careful What, and How, You Ask For eDiscovery - And Make Sure That You Do Ask

In an opinion issued by U.S. Magistrate Judge John Facciola in Audrey (Shebby) D’Onofrio,v. SFX Sports Group, Inc. et. al., (CA 06-687 DCDC) the Court makes perfectly clear that a party requesting electronic discovery must not only know how to make such a request, it must translate that knowledge into a request containing words and phrases that indicate a request for electronic discovery of original information in native, searchable format. In this case, the requesting Plaintiff did not ask for original information in native (and searchable) format, nor did she ask for metadata.

To paraphrase the excerpt that follows, you get what you ask for, and won't what you don't. (Euphony intended) :

"Ultimately, then, it does not matter whether the Instruction referred to paper or electronic files – a plain reading leads to the conclusion that plaintiff did not make a request that the Business Plan be produced solely in its original format with accompanying metadata. See Vanston Bondholders Prot. Comm. v. Green, 329 U.S. 156, 170 (1946) (“Putting the wrong question is not likely to beget right answers even in law.”). A motion to compel is appropriate only where an appropriate request is made of the responding party. See Fed. R. Civ. P. 37(a)(1)(B); Raghavan v. Bayer USA, Inc., No. 3:05-cv-682, 2007 WL 2099637, at *4 (D. Conn. July 17, 2007) (“The court will not compel discovery that has not been sought.”). Because no such request has been made concerning the Business Plan, the Court will not compel the defendant to produce it in its original form with accompanying metadata.9 See, e.g., Ponca Tribe of Indians v. Continental Carbon Co., No. CIV-05-445-C, 2006 WL 2927878, at *6 (W.D. Okla. Oct. 11, 2006) (“The original document requests issued by Plaintiffs failed to specify the manner in which electronic or computer information should be produced. [Defendant] elected to use a commonly accepted means of complying with the request. Nothing in the materials provided by Plaintiffs supports requiring [Defendant] to reproduce the information in a different format. Accordingly, Plaintiffs' request for reproduction of documents in their native electronic format will be denied.”); Wyeth v. Impax Labs., Inc., No. Civ. A. 06-222-JJF, 2006 WL 3091331, at *1-2 (D. Del. Oct. 26, 2006) (“Since the parties have never agreed that electronic documents would be produced in any particular format, [Plaintiff] complied with its discovery obligation by producing image files”)."

Spoliation: Claims of spoliation were asserted by the plaintiff (apparently alleging the destruction of the computer on which plaintiff worked while in defendant's employ). Despite defendants' assertion (also by allegation, not testimony) that "plaintiff was not prejudiced by the scrapping of her computer because all e-mails sent and received by her were captured from “defendants’ server and have been produced," Judge Facciola found that the record was "too thin to assess the merits of these serious allegations" and ordered an evidentiary hearing.

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