Saturday, October 04, 2008

2008-10-04 No Ask, Maybe Get: TIFF Files Held Not Reasonably Searchable

In a September 15, 2008 decision in the case of Goodbys Creek, LLC v Arch Ins. Co., Inc. (2008 WL 4279693 (MD FL 2008), Magistrate Judge Snyder, while recognizing that a failure to ask for native data format may waive a later request for same, nevertheless accepted the assertion that a production of a tiff format file made searching them "much more difficult" and compelled defendant to (and apparently in the alternative) to:

"provide any documents previously supplied as TIFF images in their native data format, provide any documents in another comparably searchable format, or supply Goodbys with software for searching the TIFF images."

This decision represents a departure from recent decisional authority that (1) holds a requesting party to its first request language, and in the absence of a specific format request, (2) permits a producing party to provide only "reasonably usable" ESI.
2008-10-03 Jury Acquits Former McAfee GC of 4 of 5 Counts, Hung on Fifth

The most appropriate commentary on the what appears to be an inexcusably late production of emails that would have bolstered the defendant's case here is the jury's verdict of acquittal.