Peacock v. Merrill, Case No. 05-0377 (S.D. Ala. January 17, 2008)

In a case sufficiently bizarre that the court felt obliged to include relevant portions of numerous exchanges between counsel in its Order, Magistrate Judge William E. Cassady has ordered the plaintiff to produce an exact copy of a compact disk at her counsel’s office so that defendants’ counsel and computer expert can review the disk and “tag” those documents they actually want produced. The nub of the argument between counsel that resulted in the motion to compel was that plaintiff’s counsel insisted on determining what documents on the CD were relevant to the dispute, the court in an earlier order had sanctioned that approach, and the defendants made no attempt in either their motion or their numerous letters to plaintiff’s counsel to prove that the information they sought off the disk was relevant. Nonetheless, the court ordered production.

The defendants seemed satisfied to demand production of the disk, not by describing the information that might be contained on the disk so that relevancy could be ascertained in the usual way, but rather by just demanding the disk. To quote the court,

To a fairly large extent, the Merrill defendants have not established that the information contained on Disk 2 is relevant to these proceedings; rather, this Court must agree with plaintiff that hundreds of documents contained on the disk are irrelevant and confidential, related as they are to homework assignments completed by plaintiff’s children, personal communications among family members, and the like.

Slip Opinion at 23-24. The key here was that plaintiff agreed to allow defendants access to the disk for inspection and review.

The court permitted the defendants to tag any documents they deemed relevant, and to copy those documents and download them to another disk and them remove them to defense counsel’s office. The court cautioned against tagging obviously personal documents, which are entirely irrelevant to the litigation.

It is not clear why plaintiff’s counsel agreed to this arrangement, perhaps just to close out what had obviously become a bitter dispute. It seems part of a growing trend to challenge a party’s right to determine relevancy of electronic documents, sort of a presumption that if the document is in electronic format, it should be produced, and any refusal to do so is suspect. It goes hand in hand with the courts’ willingness to allow imaging of hard drives almost as a matter of course without any suggestion that the producing party has engaged in any bad behavior, such as deletion of relevant documents. It’s still very early in the evolution of e-discovery, and certainly the court here made it clear that it was ordering production because the plaintiff had agreed to it, but the trend is not encouraging.

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