Case Blurb: Covad; Don’t blame the processing platform

Post Process: Previous decisions in this contentious case required, among other things, that the producing party submit itself to a third party forensics expert for an examination of its search protocol. In the instant decision, producing party was defending the fact that, after having produced e-mail in hard copy format, and then being ordered to re-produce it in native format, it only produced a native sub-set of the original imaged production. The producing party, in effect, blamed the processing platform for its difficulties in reconciling the two production sets. The court responded:
While the nature of the discrepancy is not explained, I have to assume that fewer e-mails have been produced in native format than were produced on paper. Revonet explains that the platform that Revonet originally used to search for documents was only capable of exporting documents to an HTML format. Thus, Revonet had to use a different platform to obtain .pst files and therefore could not re-run the original search exactly. This may explain the discrepancy. Neither party provides information about the magnitude of the discrepancy, however, largely because Revonet claims that it would be too burdensome for it to cross-reference the electronic documents against the hard copies to determine how many and which e-mails are missing.

While I appreciate that it would be difficult for Revonet to go back through its papers to determine whether all of the documents contained therein have since been produced and that Revonet’s present counsel did not supervise or conduct the August, 2008 search for e-mails, I also appreciate that it is a burden of Revonet’s own making. Covad should not be penalized by Revonet’s failure to maintain its discovery materials in some sort of organized fashion or keep some record of its own actions in this lawsuit. Wyeth v. Impax Labs., Inc., 248 F.R.D. 169, 171 (D. Del. 2006) (“[P]roducing party must preserve the integrity of the electronic documents it produces. Failure to do so will not support a contention that production of documents in native format is overly burdensome.”).

Post Process: In other words, a burden of one’s own making is not a basis for asserting undue burden. Another maxim: choose your platform wisely.

Covad Communs. Co. v. Revonet, Inc., 2009 U.S. Dist. LEXIS 75325 (D.D.C. Aug. 25, 2009).

Case Blurb: Covad Communs Co.; Court examines form of production dispute

On August 4, 2008, [Producing Party] advised [Requesting Party] that it had additional responsive documents available for inspection and copying. [Requesting Party] apparently never responded to that letter, but instead wrote to [Producing Party] on August 18th and demanded that [Producing Party] produce those documents by August 22nd. In an August 20, 2008 conference call, [Producing Party] stated that it would make the 35,000 pages of e-mails that are responsive to [Requesting Party's] request available in hard copy at [Producing Party's] office for inspection and copying. [Requesting Party] took issue with [Producing Party's] offer to produce the documents in hard copy as hard copy is not the documents’ native format. A few weeks later, on September 3, 2008, [Producing Party] offered to make the e-mails available in electronic format as TIFF files, but only on condition that [Requesting Party] agree to pay for the fees incurred by having one of Revonet’s legal assistants delete privileged or otherwise non-responsive documents from the electronic production set. [Requesting Paryt] objects to the form of defendant’s production because printed pages (and TIFF files) are not the native format for e-mails.

Thus, [Producing Party] insists that it be permitted to produce the e-mails in hard copy or as TIFF, provided Covad pays for the necessary deletions.

[...]

Rule 34 of the Federal Rules of Civil Procedure states that (1) the requesting party may designate the form in which the electronically stored information should be produced, and (2) if the request does not specify, then it should be produced in a form in which it is ordinarily maintained, or in a reasonably usable form. Fed. R. Civ. P. 34(b)(1)(C), 34(b)(2)(E)(ii). Thus, as just explained, the parties’ view of the preliminary inquiry here is whether [Requesting Party] designated the form in which the documents should be produced.

Rule 26(f), as amended, specifically requires the parties to discuss the form that production of electronically stored information should take. Fed. R. Civ. P. 26(f)(3)(C). This controversy predates that provision, and underscores its importance. It does not appear that [the parties] ever discussed what form this (or any other) production should take. Instead the parties seem to be making assumptions based on each others’ behavior: [Requesting Party] expecting its documents in electronic form because [Producing Party] hired a company to collect electronically stored information, and [Producing Party] assuming that they should produce 35,000 pages of e-mails in hard copy because [Requesting Party] produced its documents in that format. As there is no agreement, the parties invite me to turn to the language of the requests themselves to determine whether [Producing Party] can produce the e-mails other than in their native format.

The instructions to [Requesting Party's] document requests ask that [Producing Party] “[p]roduce all documents in [its] possession, custody or control, as they are kept in the ordinary course of business, including with all staples and clips attached and with all associated file folders, dividers and labels.”

“Documents” are defined as:

[A]ny tangible thing upon which any expression, communication, representation or data has been recorded by any means including, but not limited to, handwriting, printing, photostating, photographing, on a computer, instant messages, magnetic impulse, or mechanical or electronic recording and any non-identical copies (whether different from the original because of notes made on such copies, because of indications that said copies were sent to different individuals than were the originals, or because of any other reason), including but not limited to working papers, preliminary, intermediate or final drafts, correspondence, memoranda, charts, notes, records of any sort of meetings, invoices, financial statements, financial calculations, diaries, reports of telephone or other oral conversations, desk calendars, appointment books, audio or video tape recordings, microfilm, microfiche, computer tape, computer disk, computer printout, computer card, and all other writings and recordings of every kind that are in your actual or constructive possession, custody or control.

Thus, I am supposed to determine by examining ancient boilerplate — designed for discovery in a paper universe — such nice questions as whether an e-mail, existing in a computer’s memory is a “tangible thing” and how e-mails are “maintained in the ordinary course of business.” While I have considered a similar provision in depth once before, I see no need to repeat that metaphysical exercise here because it is a waste of judicial resources to continue to split hairs on an issue that should disappear when lawyers start abiding by their obligations under the amended Federal Rules and talk to each other about the form of production. I would much prefer to carry out my duties in accordance with Rule 1, which provides that the rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”

More importantly, I do not need to parse words because no one is pretending that Revonet prints all of its e-mails or converts them to TIFF files on a daily basis no matter how ephemeral, meaningless or trivial their content. Therefore, though [Requesting Party's] instruction is hopelessly imprecise and [Producing Party] could colorably argue that it should be interpreted to include several different formats, no reasonable person can honestly believe that hard copy is one of them. For hard copy to be an acceptable format, one would have to believe that [Producing Party], in its day to day operations, keeps all of its electronic communications on paper. There is no evidence in the record that [Producing Party] operates in this manner, and no suggestion that such a practice would be anything but incredible. Therefore, even though I can’t say I know what [Requesting Party] has asked for, I can say what they have not asked for, and that is what they got.

Covad Communs. Co. v. Revonet, Inc., 254 F.R.D. 147 (D.D.C. 2008) (internal citations removed).

Case Blurb: Collins & Aikman Corp.; Form of Document Production for Gov’t Entities Conducting Investigations

Under Rule 34 of the Federal Rules of Civil Procedure, a party has two options for the production of documents in response to a discovery request. The litigant may either produce documents “as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.” The Advisory Committee Note states that the purpose of this new rule language — added in 1980 — was to eliminate the practice of “‘deliberately [mixing] critical documents with others in the hope of obscuring significance.’” Allowing the production of documents as they “are actually kept in the usual course of business” was intended to minimize the burden of production while maintaining the “internal logic reflecting business use.”

Rule 34 does not elaborate on the term “usual course of business.” A party choosing to produce documents as maintained in the ordinary course of business “bears the burden of demonstrating that the documents made available were in fact produced consistent with that mandate.” In most cases, documents produced pursuant to Rule 34 will be organized by subject matter or category. The provision prohibits “simply dumping large quantities of unrequested materials onto the discovering party along with the items actually sought.”

The SEC [(producing party)] contends that even if the compilations are not protected as work product, it has the option of producing the complete, unfiltered, and unorganized investigatory file, as this is how the documents are maintained in the usual course of its business. As noted above, Rule 34 mandates that documents must be produced organized by the subjects of the request or organized as they are kept in the usual course of business by the producing party. The key to this dichotomy is the assumption that in either case the documents will be organized — that records kept in the usual course of business would not be maintained in a haphazard fashion. Thus regardless of the form chosen, the production will be useful to the requesting party, and neither choice will inject unnecessary time and cost into litigation.

In order to determine what constitutes an appropriate production of records as they are kept in the “usual course of business,” it is first necessary to define that term. To begin with, not every litigant is a business or functions in the manner of a business. Black’s Law Dictionary defines a business as “[a] commercial enterprise carried on for profit; a particular occupation or employment habitually engaged in for livelihood or gain.” Only as a secondary definition, business constitutes “[b]y extension, transactions or matters of a noncommercial nature.”
[...]
By rough analogy to Rule 803(6), the option of producing documents “as they are kept in the usual course of business” under Rule 34 requires the producing party to meet either of two tests. First, this option is available to commercial enterprises or entities that function in the manner of commercial enterprises. Second, this option may also apply to records resulting from “regularly conducted activity.” Where a producing party’s activities are not “routine and repetitive” such as to require a well-organized record-keeping system — in other words when the records do not result from an “ordinary course of business” — the party must produce documents according to the sole remaining option under Rule 34: “organize[d] and label[ed] . . . to correspond to the categories in the request.”

The logic of Rule 34 supports this limitation. When records do not result from “routine and repetitive” activity, there is no incentive to organize them in a predictable system. The purpose of the Rule is to facilitate production of records in a useful manner and to minimize discovery costs; thus it is reasonable to require litigants who do not create and/or maintain records in a “routine and repetitive” manner to organize the records in a usable 55 fashion prior to producing them.

However conducting an investigation — which is by its very nature not routine or repetitive — cannot fall within the scope of the “usual course of business.” While the SEC routinely collects and maintains regulatory submissions such 10-K reports, in its investigative capacity the agency conducts tailored probes of a company or an industry, requiring the gathering of records from diverse sources. Many if not most of the 1.7 million documents in the SEC production here were likely collected in the agency’s investigatory role. Thus it is no surprise that the complete collection is maintained as it was collected — in large disorderly databases. The documents can only be provided in a useful manner if the agency organizes or labels them to correspond to each demand. Based on the SEC’s submission, it appears that this has already been done through the lead litigation attorney’s creation of the 175-plus file folders at issue.

Therefore, the SEC must respond to [Requesting Party's] request for production by providing him with the documents that respond to those requests. [Requesting Party] has not requested the SEC file folders as such, but many of them correlate with the factual allegations in the Complaint, the subjects of the requests. Thus, to the extent that one or more of the 175 folders assembled by the SEC’s attorneys constitute the complete set of documents relevant to a particular request…

SEC v. Collins & Aikman Corp., 2009 U.S. Dist. LEXIS 3367 (S.D.N.Y. Jan. 13, 2009)(internal citations removed).

Case Blurb: Ahner; Objection on Relevance due to Form of Production Requested not Valid

[I]t is not a valid ground for objection that relevant, non-privileged, electronic data can be produced in paper form, when the requesting party has specified production in an electronic format.

Auto Club Family Ins. Co. v. Ahner, 2007 WL 2480322 at *4 (E.D.La. Aug. 29, 2007) (internal citations removed)

Case Blurb: Ahner; Production of Paper Version does not necessarilly Preclude Requirement to Produce ESI

“The mere fact that information which as a matter of ordinary course of one’s business is electronically stored has been produced in functional equivalent, such as through hard copy, does not in and of itself excuse a party from producing the requested information in electronic form.” Cornell Research Found., Inc. v. Hewlett Packard Co., 223 F.R.D. 55, 73 (N.D.N.Y.2003) (citing Anti-Monopoly, Inc. v. Hasbro, Inc., No. 94CIV.2120, 1995 WL 649934, at *2 (S.D.N.Y. Nov. 3, 1995) (citing 8A Wright, Miller & Marcus, Federal Practice and Procedure § 2218, at 452 & n. 13)). [Producing Party] has not provided any evidence to support its assertion that the authenticity of its engineering opinions, which were issued in final form this case in January, March and July 2006, might be compromised if the [Requesting Party] were permitted to discover its electronic files. Thus, Rule 45(d)(1)(C) does not relieve [Producing Party] of its obligation to respond to the subpoena duces tecum by producing its relevant, non-privileged, electronically stored information in the requested electronic form.

Auto Club Family Ins. Co. v. Ahner, 2007 WL 2480322 at *2 (E.D.La. Aug. 29, 2007)

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 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: Younessi; Court Fashions Protective Order to Allow for Discovery but Protect Trade Secrets

The Court is convinced that this need is strong enough to warrant discovery from [Producing Party] and the Motion to Quash is DENIED. However, some form of protective order is appropriate and the Court now turns to what form that production should take.
[...]
In situations involving information which is appropriately kept private, the Court may fashion restrictions on the form and method of disclosure. See Playboy Enterprises, Inc. v. Welles, 60 F.Supp.2d 1050 (S.D.Cal.1999). In the interest of protecting private information such as trade secrets or privileged documents, the Court can order the responding party’s attorneys to search for all documents consistent with the subpoena and to produce only those which are relevant, responsive, and do not disclose trade secrets. See, e.g., id. The Court finds in Playboy an appropriate model for this case. There, the plaintiff sought to copy the defendant’s hard drives after it learned she may have deleted emails which could potentially prove the knowledge element of plaintiff’s infringement claims. Id. at 1051. Defendant responded with concerns that privileged communications would also be recoverable under such a procedure. Id. at 1054. The court ordered the copying, but directed defense counsel to search the copy for responsive materials instead of turning over the copied drives themselves. Id. at 1055

Here, [Requesting Party] also requests to copy [Producing Party's] hard drives, a process which might reveal not just privileged, but also trade secret information. Having [Producing Party] search its own computers is an appropriate compromise here because of the unique status of [Requesting Party] as a direct competitor and of [Producing Party] as a nonparty [third party] to the underlying suit. The elaborate copying which took place in Playboy is not necessary because there are no allegations of documents being destroyed and [Producing Party] has shown that it is responsive and willing to cooperate with [Requesting Party's] reasonable requests.

Daimler Truck N. Am. LLC v. Younessi, 2008 WL 2519845 (W.D. Wash. June 20, 2008 )

Case Blurb: Search Cactus; Court lays out Protocol for Forensic Collection of Plaintiff’s Hard Drive

Post Process-Plaintiff Attorney objected to a forensics exam of his computer hard drive, a computer which he used both personally and professionally. The court, though noting the validity of issues raised, ruled for Defendants. In doing so, it appointed two forensics experts to act as officers of the court, and issued the following protocol:

[T]his Court ORDERS:
1. Within seven days of the date of this Opinion and Order, Plaintiff’s forensic computer expert shall mirror image both of Plaintiff’s computer systems’ hard drives and Plaintiff shall preserve this mirror image.

2. Plaintiff’s forensic computer expert shall then remove only Plaintiff’s confidential personal information from the mirror image of Plaintiff’s computer systems’ hard drives. Plaintiff’s expert shall provide Defendants with the protocol he utilized to remove the confidential information.

3. Plaintiff shall then provide Defendants’ computer forensic expert access to his computer systems’ hard drives.

4. Defendants’ forensic computer expert shall mirror image Plaintiff’s computer systems’ hard drives in approximately four to eight hours for each system. If the expert finds that this is not enough time, Plaintiff is expected to be reasonable in allowing some additional time. Defendant is expected to be considerate with regard to scheduling times that are less intrusive to Plaintiff and his business.

5. Defendants’ expert shall review his findings in confidence with Plaintiff prior to making any findings available to Defendants.

6. Plaintiff shall identify for deletion any information that is irrelevant and create a specific privilege log of any relevant information for which he claims privilege. The computer forensic expert shall remove the information claimed as privileged and provide all other information to Defendants.

7. Defendants’ expert shall provide Plaintiff with the protocol he utilized to remove the privileged information.

8. Forensic computer experts C. Matthew Curtin and Scott T. Simmons shall act as officers of this Court. Defendants shall be responsible for remunerating Mr. Curtin and Plaintiff shall be responsible for remunerating Mr. Simmons.

Ferron v. Search Cactus, L.L.C., 2008 WL 1902499 at *5 (S.D. Ohio Apr. 28, 2008 )

Case Blurb: Perfect Barrier; “native” e-mail format production appropriate

[Producing Party] produced the emails in electronic form on an disc that is computer accessible. Such discovery is clearly considered electronic discovery. Under Fed.R.Civ.P. 34(b)(2)(E)(ii),
[i]f a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.
[Requesting Party] did not request that the emails be produced in a particular form, yet [Requesting Party] now asks this Court to force [Producing Party] to produce the electronic emails as Static Images with a bates-number identifier. [Producing Party] objects to this request because it would cost a substantial sum of money to convert the documents from the form in which the documents are normally kept, Native format, to Static Images.

[Producing Party] has already produced the emails on a disc in Native format. [Requesting Party] maintains the email documents in such a format. Fed.R.Civ.P. 34 only requires [them] to submit the emails in the format in which it keeps them, Native format, and nothing more. While it may be more convenient for [Requesting Party] to have the emails as Static Images, Fed.R.Civ.P. 34 does not provide that convenience is a basis for requiring electronic discovery to be produced in a different format than normally maintained. If [Requesting Party] wanted the emails as Static Images, it should have specified this request in its requests for production, which it did not do.

Furthermore, this Court finds that the emails produced on an electronic media such as disc is reasonably usable. [Requesting Party] can access, examine, and even print the communications. While [Requesting Party] may prefer to have them as Static Images, the burden to convert the emails to Static Images remains with [Requesting Party]. [Producing Party] complied with Fed.R.Civ.P. 34(b)(2)(E) and is required to do nothing more.

Perfect Barrier LLC v. Woodsmart Solutions Inc., 2008 WL 2230192 (N.D. Ind. May 27, 2008 )