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

Posted by rjbiii on June 17, 2008

[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 )

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Posted in 7th Circuit, Case Blurbs, Cost of Discovery, Cost Shifting, Discovery Requests, Duty to Produce, email, Form of Production, FRCP 34, FRCP 34(b), Magistrate Judge Christopher A. Nuechterlein, N.D. Ind. | Tagged: , | Leave a Comment »

Case Blurb: Perfect Barrier; Care needed in drafting a Protective Order

Posted by rjbiii on June 17, 2008

Requesting party submitted search terms to producing party, who executed the searches, and then produced the e-mails returned. The Producing Party then designated all e-mails from the search set “Attorneys Eyes Only,” effectively restricting the Requesting Party’s experts from immediately reviewing the documents. The Requesting Party objected to the designation, complaining that the “blanket” designation violated the agreed protective order, while the Producing Party contended that the designation was in compliance with the order. The court opines as follows:

[Requesting Party] argues that a designation of “all emails” is not a legitimate or reasonable category. However, the protective order does not indicate either in Part XIII or elsewhere what constitutes a legitimate category, and the agreed protective order does not more narrowly define what constitutes a legitimate category. Consequently, even though [Producing Party’s] designation of “emails” resulted in a very large category, it is a category. Nothing in the protective order prevents large categorical designations. If [Requesting Party] desired [Producing Party] to be more selective in its use of the confidential designation, [Requesting Party] should have utilized more care in drafting the agreed protective order to include more particular language that is consistent with its position. As it stands, the language of the protective order simply requires a “category” designation. Therefore, this Court finds that [Producing Party] followed and did not violate the protective order.

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

Posted in 7th Circuit, Case Blurbs, Discovery Requests, Magistrate Judge Christopher A. Nuechterlein, N.D. Ind. | Tagged: , | Leave a Comment »