Defendants requested Plaintiffs to produce better copies of electronic documents and permit their expert to review original data. Plaintiffs, in response, sought production of source documents and an ‘audit trail’ for purposes of assessing the accuracy and validity of Defendants’ electronic disclosures. The key data and the ‘audit trail’ document resides on databases maintained by a non-party. The non-party was not willing to undertake the massive task of production and concerned not to expose itself to liability by releasing confidential health information and potentially breaching federal or state privacy legislation.

The court held that the entire database is highly relevant in its entirety. It is a ‘document’ as including ‘data and information in electronic form’ under Rule 30.01(1)(a) of the Rules of Civil Procedure. It is also a ‘document’ in the “power, possession or control” of the Defendant under Rule 30.02. Rule 30.04 allowed for inspection of originals of documents and the taking of copies if desired.

In the case at bar, an obligation on Defendants to produce information in the subject database would mean that Defendants be required to request the non-party to do all things necessary to permit the Defendants to meet their obligations as a litigant, on the Plaintiff’s rights of access to such information.

Defendants and the non-party provided redacted versions of the database information. The court required Defendants to show that their solution (in this case redaction of data of initials and birthdates) meet four criteria:

  1. produced data that was substantially the same as that which had been reviewed by the defendants' own experts;
  2. demonstrated forensic continuity in the data such that any issues about authenticity or accuracy could be readily answered;
  3. did not leave the data less meaningful or useful; and
  4. did not unduly delay production.

The court determined that Defendants’ solution did not meet the criteria. In particular, Defendants’ experts were working with complete set of data, which could be a prejudice to Plaintiffs. Disclosure of redacted information was ordered, following which any remaining data would be produced in complete form – the minimal invasion of privacy would have to yield to the imperative of justice.