Plaintiff distributor of pharmaceuticals commenced an action for delayed market entry against Defendant manufacturers of pharmaceuticals for various losses. Plaintiff moved for court’s assistance with electronic access to Defendants’ productions. Defendants’ Affidavit of Documents described each document only by its type (e.g. letter, note, assignment). Plaintiff argued that such descriptions did not enable it to unambiguously retrieve specific documents from the production. Moreover, the produced documents were catalogued using identification codes inconsistent with the codes used in the Affidavit of Documents, and were not ordered chronologically. The noted deficiencies made document review extremely time consuming for no apparent good reason.
Master Short held that rather than requiring detailed descriptions of every document referenced in Defendants’ production, which would be impractical in such magnitude, the Defendants were required to provide an alpha-numeric identifier that permitted swift referencing by the reviewing counsel.
An appropriate identification system would:
- enable swift and certain retrieval at trial and discovery,
- enable reviewing counsel to be satisfied that each document referenced in the affidavit of documents has been produced,
- to determine that documents tendered as an exhibit in listed in the affidavit of documents,
- be compatible with computer retrieval systems, and
- be implemented before documents are copied so all parties copies bear the identifier.
Principles 5 and 8 of the Sedona Principles, incorporated by Rule 29.1 of the Rules of Civil Procedure, required agreement between parties on the format, content and organization of information in required lists of documents that as would be reasonable given the cost and burden of such production. Steps had made by Defendants to remedy the allegedly inadequate production through the further provision of such documents via a ‘Summation Briefcase’, which allowed for easy uploading of the documents to the popular document management software. Despite the fact that Plaintiff would still then be required to provide their own identifiers to the produced documentation, they informed the court that no further problems with accessing the productions of the Defendants. Master Dash, accordingly, denied Plaintiff’s request for a further and better affidavit of documents.