Case Blurb: Aguilar; Metadata Production Requests Should be Made Early

There is a clear pattern in the case law concerning motions to compel the production of metadata. Courts generally have ordered the production of metadata when it is sought in the initial document request and the producing party has not yet produced the documents in any form. On the other hand, if metadata is not sought in the initial document request, and particularly if the producing party already has produced the documents in another form, courts tend to deny later requests, often concluding that the metadata is not relevant.

In sum, as a recent article has noted, if a party wants metadata, it should “Ask for it. Up front. Otherwise, if [the party] ask[s] too late or ha[s] already received the document in another form, [it] may be out of luck.” Hagenbuch [v. 3B6 Sistemi Elettronici Industriali S.R.L., 2006 U.S. Dist. LEXIS 10838 (N.D. Ill. Mar. 8, 2006)] illustrates the wisdom of this advice. In that patent infringement suit, the plaintiff demanded electronic document production in native form in his first document request. The defendants rejected this request and produced the documents in TIFF format without metadata. The court noted that the TIFF documents did not contain such relevant information as the creation and modification dates of documents, email attachments and recipients, and other metadata. The court also observed that the metadata was relevant to the plaintiff’s infringement claim because it “will allow him to piece together the chronology of events and figure out, among other things, who received what information and when.” The court therefore ordered production in native form despite the fact that the defendants could not Bates stamp the documents and had already made a production.

By comparison, in [Autotech Techs. Ltd. P'ship v. AutomationDirect.com, Inc., 248 F.R.D. 556 (N.D. Ill. 2008)], the court denied a motion to compel the production of metadata for Word documents after the plaintiff had already produced the documents in both PDF and paper format. In that case, the initial production request did not specify a form for production. As the court noted, the plaintiff therefore could have produced its documents in the form in which they were ordinarily maintained or in a reasonably usable form. In concluding that production in PDF form constituted a reasonably usable form, the court relied heavily upon the defendant’s failure to ask for metadata at the outset. The court stated that it “seems a little late to ask for metadata after documents responsive to a request have been produced in both paper and electronic format.” . The court also noted that, “[o]rdinarily, courts will not compel the production of metadata when a party did not make that a part of its request.” It concluded that the defendant “was the master of its production requests; it must be satisfied with what it asked for.”
[...]
The Federal Rules of Civil Procedure, case law, and the Sedona Principles all further emphasize that electronic discovery should be a party-driven process. Indeed, Rule 26(f) requires that the parties meet and confer to develop a discovery plan. That discovery plan must discuss “any issues about disclosure or discovery of [EST], including the form or forms in which it should be produced.” In fact, the commentary to the rule specifically notes that whether metadata “should be produced may be among the topics discussed in the Rule 26(f) conference.” As the commentary further observes, early identification of disputes over the forms production may help avoid the expense and delay of searches or productions using inappropriate forms.” Thus, at the outset of any litigation, the parties should discuss whether the production of metadata is appropriate and attempt to resolve the issue without court intervention.

Likewise, courts have emphasized the need for the parties to confer and reach agreements regarding the form of electronic document production before seeking to involve the court.
[...]

Metadata has become “the new black,” with parties increasingly seeking its production in every case, regardless of size or complexity. In keeping with that trend, the Plaintiffs in this case argue that all metadata for all electronic documents should be produced, both because the metadata is relevant to their claims and because it will enable them to search and sort the documents more efficiently. In evaluating these assertions, the timing of the Plaintiffs’ request is important. The first Rule 26(f) conference was held on January 18, 2008. Thereafter, the first request for production of documents was made on February 15, 2008. Throughout this time period, the Plaintiffs made no mention of metadata even though the Defendants had started to harvest their documents. Indeed, by the time the Plaintiffs first informed the Defendants of their desire for metadata (in passing on March 18 and formally on May 22, 2008), the Defendants’ document collection efforts were largely complete and they had already produced many of their electronic documents in PDF format without accompanying metadata. In these circumstances, the Plaintiffs face an uphill battle in their efforts to compel the Defendants to make a second production of their ESI.

Aguilar v. Immigration & Customs Enforcement Div., 2008 U.S. Dist. LEXIS 97018 (S.D.N.Y. Nov. 20, 2008) (internal citations removed).

Case Blurb: Thai Heng Chang; Court discusses documents produced across matters

The Court agrees generally that Defendant should not have to produce documents he has already produced, whether in another cause or not, but he may not simply refer Plaintiff to the other lawsuit with the general objection that he’s already produced responsive documents. Defendant must respond to each discovery request served in this case and identify each responsive document by Bates number or other identifying information that specifies the precise document. Of course, any responsive documents between March 22, 2007, and July 1, 2007, would not be previously produced in response to the subpoena, and therefore, shall now be produced within ten days of this date.

Infinite Energy, Inc. v. Thai Heng Chang, 2008 WL 4098329 at *2 (N.D.Fla. Aug. 29, 2008 ) (emphases in the original).

Case Blurb: D’Onofrio; Court Discusses Request to Compel Production of Business Plan in Electronic Format

Plaintiff asks the Court to compel the production of the Business Plan 3 “in its original electronic format, with accompanying metadata. FN4 ” Plaintiff argues that Rule 34 permits the production of documents outside of their original format only “if necessary,” and, in this case, no such necessity exists. Defendants respond that: (a) plaintiff did not request that the Business Plan or any other documents be produced in a specific format; (b) production in original electronic format with metadata is not required by the Federal Rules of Civil Procedure or in the absence of a clear agreement or court order, neither of which are present here; and (c) plaintiff has not made any attempt to demonstrate the relevance of the metadata.

FN4: Metadata has been defined as “information about a particular data set which describes how, when, and by whom it was collected, created, accessed, or modified and how it was formatted.” Williams v. Sprint/United Management Co., 230 F.R.D. 640, 646 (D. Kan. 2005) (quoting THE SEDONA GUIDELINES: BEST PRACTICE GUIDELINES AND COMMENTARY FOR MANAGING INFORMATION & RECORDS IN THE ELECTRONIC AGE app. F).

1. Rule 34 — “If Necessary”

As an initial matter, plaintiff argues that Rule 34 of the Federal Rules of Civil Procedure FN5 permits the production of documents other than in their original format only “if necessary.” Reply at 5 (“Defendants have failed to show that their failure to produce the requested documents in their original format has been borne out of necessity.”). Rule 34(a) states, in relevant part: In General. A party may serve on any other party a request . . . 1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party’s possession, custody, or control:

(A) any designated documents or electronically stored information — including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations — stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form Fed. R. Civ. P. 34(a)(1)(A) (emphasis added). Rule 34(a) does not set forth constraints on the manner of production, but instead establishes the permissible scope of a request. (“A party may serve on any other party a request . . . “). Consequently, the “if necessary” clause seized upon by plaintiff is actually a constraint on the requesting party rather than the responding party. In other words, electronic data is subject to discovery if it is stored in a directly obtainable medium. If, however, it is not stored in a directly obtainable medium, a request may be made of the responding party to translate the electronic data into a “reasonably usable form.” Because the step of translating this type of electronic data adds an extra burden on the responding party, the request may only seek for it to be done “if [the translation is] necessary.” It is not the case that this clause requires the responding party to produce data in its original form unless “necessary” to do otherwise.

FN5:All references to the Federal Rules of Civil Procedure are to the version that became effective December 1, 2007.

2. Request for Specific Form of Production

This does not end the analysis of whether a responding party might be required to produce electronic data in its original form with metadata. To the contrary, HN5Go to the description of this Headnote.Rule 34(b) states that a discovery request “may specify the form or forms in which electronically stored information is to be produced.” Fed. R. Civ. P. 34(b)(1)(C). In this case, plaintiff argues that she so specified in Instruction No. 4 of Plaintiff’s Requests for the Production of Documents (the “Instruction”):

[F]or any documents that are stored or maintained in files in the normal course of business, such documents shall be produced in such files, or in such a manner as to preserve and identify the file from which such documents were taken.

It is apparent that this language, when first written, was not meant to encompass electronic data. Instead it addresses a common concern of paper discovery: the identification of a document’s custodian and origination. It is for this reason that the Instruction applies to documents “stored or maintained in files,” and why it seeks to “preserve and identify” the identity of that file. Indeed, the Instruction makes perfect sense when one presumes “file” to refer to a physical file cabinet or folder. FN6

FN6: See MERRIAM-WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY UNABRIDGED (2002) (defining “file” as “a container (as a folder or a metal cabinet) in which papers are kept usually in chronological or alphabetical order for ready reference”).

Of course, “file” can also mean electronic data stored on an electronic medium. FN7 Using this definition, the Instruction can be strained to provide the responding party with two options for producing electronic documents: (a) produce the electronic file containing the document (i.e. a .PDF or .XLS file), or (b) produce the document in such a manner as to “preserve and identify the file from which” it was taken. The inclusion of the word “preserve” makes it very difficult to understand how the Instruction could apply to electronic documents; after all, how can the production of a document without the electronic file encompass the “preserv[ation]” of that electronic file? A more credible reading of the second option is that a document need not be produced as an electronic file if the alternate production “preserve[s the] identi[ty of] the file from which” it was taken. In practice this would likely refer to a “trailer” at the bottom of a printed electronic document containing its location on electronic storage media (i.e. an electronic spreadsheet could be printed on a piece of paper with the trailer “c:\accounting\harry\FY07 charts.xls”). FN8 I do not know if defendants provided such a trailer because plaintiff did not attach the Business Plan to its Motion or provide any other detail concerning its format, other than to state that it was not in its original form with accompanying metadata. Nevertheless, it is clear that the Instruction, if applicable to electronic files, permits production of the Business Plan in a non-native form without accompanying metadata.

FN7:See OXFORD ENGLISH DICTIONARY (2d ed. 1989) (defining file as a “collection of related records stored for use by a computer and able to be processed by it”).
FN8: Indeed, the Motion itself contains a trailer on the bottom of each page that reads: “C:\MyFiles\CLIENT\Shebby\Pleadings\Discovery\MOTIONS\Motion may 16.wpd.”

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, 67 S. Ct. 237, 91 L. Ed. 162 (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 U.S. Dist. LEXIS 51916, 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. FN9 See, e.g., Ponca Tribe of Indians v. Continental Carbon Co., No. CIV-05-445-C, 2006 U.S. Dist. LEXIS 74225, 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, 248 F.R.D. 169, 2006 U.S. Dist. LEXIS 79761, 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”). Cf. Treppel v. Biovail Corp., 233 F.R.D. 363, 374 (S.D.N.Y. 2006) (requiring production in native format where requesting party asked for it and producing party did not object). See also RALPH C. LOSEY, E-DISCOVERY, CURRENT TRENDS AND CASES 158-59 (2007) (summarizing recent cases as amounting to a “lesson . . . that in order to obtain metadata you may need, you should specifically ask for it to begin with”).

FN9:Where the requesting party “does not specify a form for producing electronically stored information, a [responding] [**15] party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Fed. R. Civ. P. 34(b)(2)(e)(ii) (emphasis added).

D’Onofrio v. Sfx Sports Group, Inc., 247 F.R.D. 43, 46-47 (D.D.C. 2008 ) (internal citations removed).

Case Blurb: YouTube; Court Denies Motion to Compel Production of “Private” Videos and Related Data-For the Most Part

Private Videos and Related Data

YouTube.com users may override the website’s default setting–which makes newly added videos available to the public–by electing to mark as “private” the videos they post to the website. Plaintiffs move to compel production of copies of all those private videos, which can only be viewed by others authorized by the user who posted each of them, as well as specified data related to them.

Defendants are prohibited by the Electronic Communications Privacy Act (“ECPA”) (18 U.S.C. § 2510 et seq.) from disclosing to plaintiffs the private videos and the data which reveal their contents because ECPA § 2702(a)(2) requires that entities such as YouTube who provide “remote computing service to the public shall not knowingly divulge to any person or entity the contents” of any electronic communication stored on behalf of their subscribers, FN8 and ECPA § 2702 contains no exception for disclosure of such communications pursuant to civil discovery requests.

FN8:The prohibition against divulgence of stored subscriber communications set forth in ECPA § 2702(a)(2) applies only “if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing” (id. § 2702(a)(2)(B)), but defendants satisfy that condition here because their authorization to access and delete potentially infringing private videos is granted in connection with defendants’ provision of alleged storage services.

Plaintiffs claim that users have authorized disclosure of the contents of the private videos pursuant to ECPA § 2702(b)(3) (remote computing service providers “may divulge the contents of a communication * * * with the lawful consent of * * * the subscriber”) by assenting to the YouTube website’s Terms of Use and Privacy Policy, which contain provisions licensing YouTube to distribute user submissions (such as videos) in connection with its website and business, FN9 disclaiming liability for disclosure of user submissions, FN10 and notifying users that videos they divulge online in the public areas of the website may be viewed by the public.

FN11 None of those clauses can fairly be construed as a grant of permission from users to reveal to plaintiffs the videos that they have designated as private and chosen to share only with specified recipients.

FN9: “However, by submitting User Submissions to YouTube, you hereby grant YouTube a worldwide, non-exclusive * * * license to * * * distribute * * * the User Submissions in connection with the YouTube Website and YouTube’s (and its successors’ and affiliates’) business.” This authorizes YouTube to post the video on the website; the privacy designation restricts to whom it may be shown.

FN10: “YouTube does not guarantee any confidentiality with respect to any User Submissions.”

FN11: The record shows that the provision of the Privacy Policy plaintiffs point to, which states that “Any videos that you submit to the YouTube Sites * * * may be viewed by the general public” refers to “personal information or video content that you voluntarily disclose online (on discussion boards, in messages and chat areas, within your playback or profile pages, etc.)” which “becomes publicly available.”

But the ECPA does not bar disclosure of non-content data about the private videos (e.g., the number of times each video has been viewed on YouTube.com or made accessible on a third-party website through an ‘embedded’ link to the video). Plaintiffs argue that such data are relevant to show whether videos designated private are in fact shared with numerous members of the public and therefore not protected by the ECPA, and to then obtain discovery on their claim (supported by evidence) FN12 that users abuse YouTube’s privacy feature “to share infringing videos with any interested member of the public while evading detection by content owners.” It is not clear from this record whether plaintiffs’ interpretation of the ECPA is correct, but their view is colorable, as the statute’s legislative history states that “a subscriber who places a communication on a computer ‘electronic bulletin board,’ with a reasonable basis for knowing that such communications are freely made available to the public, should be considered to have given consent to the disclosure or use of the communication.” Plaintiffs need the requested non-content data so that they can properly argue their construction of the ECPA on the merits and have an opportunity to obtain discovery of allegedly infringing private videos claimed to be public.

FN12: Plaintiffs submitted a snapshot of a YouTube user’s web page entitled “THE_RUGRATS_CHANNEL” which states “Disclaimer: Rugrats_and all Rugrats_related items are a copyright of Viacom” and on which the user states:

WELCOME TO MY_RUGRATS_PAGE. Previously rbt200, this is my new channel. The old one got deleted so I thought I’d start again, but this time, it’s JUST_RUGRATS! A whole channel dedicated to this fantastic cartoon! I will be posting whole episodes over the coming weeks so be sure to subscribe or add me as a friend because they might be set to private.

Viacom Int’l Inc. v. YouTube Inc., 2008 U.S. Dist. LEXIS 50614 at *25-30 (S.D.N.Y. July 1, 2008 ) (internal citations removed).

Case Blurb: YouTube; Court Grants Motion to Compel Videos “Removed” from Web Site

Removed Videos

Plaintiffs seek copies of all videos that were once available for public viewing on YouTube.com but later removed for any reason, or such subsets as plaintiffs designate. Plaintiffs claim that their direct access to the removed videos is essential to identify which (if any) infringe their alleged copyrights. Plaintiffs offer to supply the hard drives needed to receive those copies, which defendants store on computer hard drives.

Defendants concede that “Plaintiffs should have some type of access to removed videos in order to identify alleged infringements”, but propose to make plaintiffs identify and specify the videos plaintiffs select as probable infringers by use of data such as their titles and topics and a search program (which defendants have furnished) that gives plaintiffs the capacity both to run searches against that data and to view “snapshots” taken from each removed video. That would relieve defendants of producing all of the millions of removed videos, a process which would require a total of about five person-weeks of labor without unexpected glitches, as well as the dedication of expensive computer equipment and network bandwidth.

However, it appears that the burden of producing a program for production of all of the removed videos should be roughly equivalent to, or at least not significantly greater than, that of producing a program to create and copy a list of specific videos selected by plaintiffs.

While the total number of removed videos is intimidating (millions, according to defendants), the burden of inspection and selection, leading to the ultimate identification of individual “works-in-suit”, is on the plaintiffs who say they can handle it electronically.

Under the circumstances, the motion to compel production of copies of all removed videos is granted.

Viacom Int’l Inc. v. YouTube Inc., 2008 U.S. Dist. LEXIS 50614 at *13-15 (S.D.N.Y. July 1, 2008 ) (internal citations removed).

Case Blurb: YouTube; Court Denies Motion to Compel Production of Source Code for Video ID Program

Plaintiffs also move to compel production of another undisputed trade secret, the computer source code for the newly invented “Video ID” program. Using that program, copyright owners may furnish YouTube with video reference samples, which YouTube will use to search for and locate video clips in its library which have characteristics sufficiently matching those of the samples as to suggest infringement. That program’s source code is the product of “approximately 50,000 man hours of engineering time and millions of dollars of research and development costs”, and maintaining its confidentiality is essential to prevent others from creating competing programs without any equivalent investment, and to bar users who wish to post infringing content onto YouTube.com from learning ways to trick the Video ID program and thus “escape detection.”

Plaintiffs claim that they need production of the Video ID source code to demonstrate what defendants “could be doing — but are not — to control infringement” with the Video ID program. However, plaintiffs can learn how the Video ID program works from use and observation of its operation, and examination of pending patent applications, documentation and white papers regarding Video ID (id.), all of which are available to them. If there is a way to write a program that can identify and thus control infringing videos, plaintiffs are free to demonstrate it, with or without reference to the way the Video ID program works. But the question is what infringement detection operations are possible, not how the Video ID source code makes it operate as it does. The notion that examination of the source code might suggest how to make a better method of infringement detection is speculative. Considered against its value and secrecy, plaintiffs have not made a sufficient showing of need for its disclosure.

Therefore, the motion to compel production of the Video ID code is denied.

Viacom Int’l Inc. v. YouTube Inc., 2008 U.S. Dist. LEXIS 50614, 11-13 (S.D.N.Y. July 1, 2008 )

Case Blurb: YouTube; Denying Motion Compelling the Production of Source Code to Opponents

Plaintiffs move jointly pursuant to Fed. R. Civ. P. 37 to compel [Defendants] to produce certain electronically stored information and documents, including a critical trade secret: the computer source code which controls both the YouTube.com search function and Google’s internet search tool “Google.com”. [Defendants] cross-move pursuant to Fed. R. Civ. P. 26(c) for a protective order barring disclosure of that search code, which they contend is responsible for Google’s growth “from its founding in 1998 to a multi-national presence with more than 16,000 employees and a market valuation of roughly $ 150 billion”, and cannot be disclosed without risking the loss of the business. Viacom Int’l Inc. v. YouTube Inc., 2008 U.S. Dist. LEXIS 50614, 7-8 (S.D.N.Y. July 1, 2008 ) (internal citations removed).

YouTube and Google maintain that “no source code in existence today can distinguish between infringing and non-infringing video clips — certainly not without the active participation of rights holders”, and Google engineer Amitabh Singhal declares under penalty of perjury that:

The search function employed on the YouTube website was not, in any manner, designed or modified to facilitate the location of allegedly infringing materials. The purpose of the YouTube search engine is to allow users to find videos they are looking for by entering text-based search terms. In some instances, the search service suggests search terms when there appears to be a misspelling entered by the user and attempts to distinguish between search terms with multiple meanings. Those functions are automated algorithms that run across Google’s services and were not designed to make allegedly infringing video clips more prominent in search results than non-infringing video clips. Indeed, Google has never sought to increase the rank or visibility of allegedly infringing material over non-infringing material when developing its search services.

Id. at *9-10 (internal citations removed).

Plaintiffs argue that the best way to determine whether those denials are true is to compel production and examination of the search code. Nevertheless, YouTube and Google should not be made to place this vital asset in hazard merely to allay speculation. A plausible showing that YouTube and Google’s denials are false, and that the search function can and has been used to discriminate in favor of infringing content, should be required before disclosure of so valuable and vulnerable an asset is compelled.

Nor do plaintiffs offer evidence supporting their conjecture that the YouTube.com search function might be adaptable into a program which filters out infringing videos. Plaintiffs wish to “demonstrate what Defendants have not done but could have” to prevent infringements, (plaintiffs’ italics), but there may be other ways to show that filtering technology is feasible FN2 and reasonably could have been put in place. Id. at *10 (internal citations removed).

FN2: In the Viacom action:

Viacom is currently using fingerprinting technology provided by a company called Auditude in order to identify potentially infringing clips of Viacom’s copyrighted works on the YouTube website. The fingerprinting technology automatically creates digital “fingerprints” of the audio track of videos currently available on the YouTube website and compares those fingerprints against a reference library of digital fingerprints of Viacom’s copyrighted works. As this comparison is made, the fingerprinting technology reports fingerprint matches, which indicate that the YouTube clip potentially infringes one of Viacom’s copyrighted works.

Finally, the protections set forth in the stipulated confidentiality order are careful and extensive, but nevertheless not as safe as nondisclosure. There is no occasion to rely on them, without a preliminary proper showing justifying production of the search code.

Therefore, the cross-motion for a protective order is granted and the motion to compel production of the search code is denied. Id. at *11.

Case Blurb: Cunningham; Relevancy, and Who has the Burden to Prove it

[P]ursuant to Fed.R.Civ.P. 26(b)(1), any discovery sought must be relevant. Relevancy is broadly construed, and a request for discovery should be considered if there is “any possibility” that the information sought may be relevant to the claim or defense of any party. See, e.g., Sheldon v. Vermonty, 204 F.R.D. 679, 689-90 (D.Kan.2001). “When the discovery sought appears relevant, the party resisting the discovery has the burden to establish the lack of relevancy by demonstrating that the requested discovery (1) does not come within the scope of relevance as defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure .” Simpson v. University of Colorado, 220 F.R.D. 354, 350 (D.Colo.2004) (citations omitted). Further, the objecting party cannot “sustain this burden with boilerplate claims that the requested discovery is oppressive, burdensome or harassing.” Id. (citation omitted). However, when a request for discovery is overly broad on its face or when relevancy is not readily apparent, the party seeking the discovery has the burden to show the relevancy of the request.

Cunningham v. Standard Fire Ins. Co., 2008 WL 2668301 (D. Colo. July 1, 2008 )

AL Case Blurb: Ex Parte Vulcan Materials; Limits on the Scope of Discovery

Post Process-This is a Case Blurb from the State of Alabama, whose laws regarding discovery will differ from those of the Federal Courts.

“‘The first step in determining whether the court has [exceeded] its discretion is to determine the particularized need for discovery, in light of the nature of the claim.’” Ex parte Henry, 770 So. 2d 76, 80 (Ala. 2000) (quoting Ex parte Rowland, 669 So. 2d 125, 127 (Ala. 1995) (emphasis added)). To be relevant to a constitutionally sanctioned punitive-damages review, any extraterritorial conduct of the defendant “must have a nexus to the specific harm suffered by the plaintiff.” Campbell, 538 U.S. at 422 (emphasis added). An action in one state may not be “used as a platform to expose, and punish, the perceived deficiencies of [a defendant's] operations throughout the country.” Campbell, 538 U.S. at 420. “A defendant’s dissimilar acts, independent from the acts upon which liability was premised, may not serve as the basis for punitive damages. A defendant should be punished for the conduct that harmed the plaintiff ….” 538 U.S. at 422-23. This is so, because, “as a general rule,” a State does not “have a legitimate concern in imposing punitive damages to punish defendants for unlawful acts committed outside of the State’s jurisdiction.” 538 U.S. at 421. Thus, a litigant may not seek to support a punitive-damages award through discovery aimed at generic, undelineated out-of-state conduct.

[...]

Furthermore, discovery requests must generally be subject to reasonable temporal limitations. In Ex parte Orkin, we said:

“No bright line exists concerning the maximum period over which a litigant should be required to search for records. The length of that period depends on whether the records being searched are ‘relevant to the subject matter involved in the dispute.’ Rule 26(b)(1), Ala. R. Civ. P.; 8 Wright, Miller & Marcus, Federal Practice and Procedure § 2008 (1994). Even then, a litigant in a fraud action must show a substantial need for discovery of records that concern transactions with nonparties, that are older than five years, and that do not directly relate to the litigant’s own claim or defense.”

Ex parte Vulcan Materials Co., 2008 Ala. LEXIS 79, 19-20 (Ala. Apr. 25, 2008 )

Case Blurb: R & R Sails; ‘honest mistake’ does not substantially justify failure to produce database records

[Producing Party's] production of electronically-stored claim log entries on January 8, 2008 demonstrate that Defendant had made incorrect certifications to [Requesting Party] as well as representations to the Court-that [Producing Party's] production of discovery was complete.

Sanctions under Rule 26(g) must be issued unless violation of the rule was “substantially justified.” [Requesting Party] claims substantial justification for maintaining the position that no claim log was in [Producing Party's] possession, based on Lombardo’s misunderstanding of the discovery being requested of [Producing Party]. According to [Requesting Party], [Producing Party's employee] Lombardo failed to recognize that the AEGIS database that he entered notes into contained the “daily activity logs or telephone records” that [Requesting Party] had been requesting.

Lombardo has been an insurance adjuster for twenty-six years and explains that he did not associate the AEGIS database with the claim file that he maintains because “[t]he AEGIS computer system records are kept on a computer system that is separate from my file materials and I do not have a practice of printing them out to put in my file.” [The Producing Party] argues that this “honest mistake” substantially justifies the incorrect certifications made to [Requesting Party], as well as the false declaration provided to [the Requesting Party] in response to this Court’s Order of November 29, 2007. However, to give meaning to the certifications provided on discovery responses, Rule 26(g) requires attorneys or parties to sign their responses “after a reasonable inquiry.” Evidence of such an inquiry prior to January 2007 may provide this Court with justification for the incorrect certifications provided to [the Requesting Party]. Instead, this Court is presented with evidence that Lombardo was maintaining a claim log on his own computer using the AEGIS system while failing to recognize that this log was the same “record/log” being requested by [the Requesting Party]. Lombardo entered notes of a communication with counsel into the AEGIS system on November 16, 2007, immediately prior to counsel’s representation to this Court that such a system was not possessed by [the Producing Party] and close in time to his signing a declaration that no such notes are maintained. The Court cannot find that a reasonable inquiry was made into whether [Producing Party] possessed discovery responsive to [Requesting Party's] requests, and therefore the Court does not find [Requesting Party's] incorrect certifications to be substantially justified.

R & R Sails Inc. v. Ins. Co. of Pa., 2008 WL 2232640 at *5 (S.D. Cal. Apr. 18, 2008 ) (internal citations removed)