Regarding several e-discovery matters in this case, the court decided largely in favour of Micron Technology, Inc. (Micron), the plaintiff seeking to compel production of documents by the defendant, S2 Automation LLC (S2 Automation). The primary issues considered in this case included: (1) whether the electronically stored information (ESI) sought must be produced in the format requested by Micron; (2) whether metadata must separately be produced for ESI; (3) whether the search strategy used by S2 Automation in providing the discovery documents must be identified; and (4) whether S2 Automation adequately responded to Micron Technology’s first requests for production (RFP).
1. Produce ESI in either Native or TIFF format requested
Analysis of this issue formed the bulk of the court’s decision in which it ultimately held that electronically stored information must be produced in either the format requested by Micron or in the native format. Rule 34(b)(2)(E)(ii) permitted the party to produce documents either as they are kept in the “usual course of business” or to organize and label them according to the categories in the request. In this instance, because S2 Automation had not objected to Micron’s earlier request that documents be in TIFF format along with extracted text files, and because Micron later assented to receiving the documents in the native format, Micron was entitled to receive the documents in either of the formats requested.
In rejecting S2 Automation’s argument that the PDF format it had earlier provided was one used in the “usual course of business”, the court stated that “S2 Automation may commonly transfer the contents of its electronic mail transmissions into PDF files as part of its business, but that does not mean that the native format for its electronic mail transmissions is PDF format.” The court adopted from an earlier case the definition of native file format as the “file structure defined by the original creating application.” With the knowledge that “no major electronic mail service...stores electronic mail transmissions in PDF format”, the court rejected that the PDF format constituted a native format. The court further directed that in keeping with the Rules and the relevant advisory committee’s notes, the attachments corresponding to the electronic mail transmissions should be included since separation makes it “more difficult or burdensome for the requesting party to use the information efficiently in litigation.”
Finally, the court directed that S2 Automation “err on the side of producing all messages that are part of a given electronic-mail-transmission chain” since “every part of a conversation can become admissible upon the admission of other portions of the conversation.”
2. Metadata linked to ESI format
With respect to the issue of metadata, the court linked its answer to the delivery format chosen by S2 Automation. First, the court used the Sedona Glossary to define metadata as data that “describe how, when, and by whom ESI was collected, created, accessed, modified, and how it was formatted.” It further used the Tenth Circuit’s description of metadata as “data about data.” Second, the court stated that if S2 chose to produce the documents in the TIFF format requested by Micron, then it would not be automatically required to separately produce metadata. However, recognizing that metadata could be potentially useful and relevant, it stated its inclination towards granting any reasonable request from Micron to obtain metadata.
3. Search strategy must be identified
In deciding this issue, the court required identification of the search strategy employed by S2 Automation in gathering the relevant discovery documents. It ordered the identification of the search strategy in order to determine its adequacy and ultimately the adequacy of the discovery responses. The court based its concern regarding the adequacy of S2 Automation’s strategy in responding to discovery respects on evidence that counsel and client failed to work closely together during the document production process. In particular, the court required the search strategy disclose how documents were identified as pertinent, the procedures used in identification, and how S2 Automation interacted with its counsel to facilitate the production process.
4. Adequacy of Response to Requests for Production
For the final issue, the court first directed S2 Automation to respond separately to each request for production. Although the S2 Automation argued that many of the requests were redundant and answering the first answered the subsequent requests, the court required that each request be addressed separately providing clarity to the discovery process.
The court also articulated the standard for production required of S2 Automation requiring it to “produce all unprivileged and unprotected responsive documents in its possession or control.” In this case, control contemplated “not only possession, ‘ but also the right, authority, or ability to obtain documents’” [citation omitted]. A legal right, authority, or practical ability to obtain evidence constituted control. Additionally, where control was not present, the court required S2 Automation to file an affidavit from a corporate official to that effect.
Finally, the court granted several specific requests for production though limiting them in scope. In doing so, it used the principles highlighted above regarding the scope of discovery and control over documents. In addition, it stated, “[a]s a general matter, parties cannot avoid their discovery obligations by stating that ‘the discovery sought...can be obtained from another source’” [citation omitted]. An objection of this sort is “generally improper absent a showing of undue burden.”
The effect of the rulings in this case were to force S2 Automation’s compliance with its discovery obligations. In doing so, discovery was construed broadly to “achieve full disclosure of potentially relevant information.”