This update addresses the following recent developments and court decisions involving e-discovery issues:
- An Eastern District of Louisiana ruling that a plaintiff’s requests that defendant produce login information for “all online websites related to this litigation” as well as computers for imaging were overbroad and inconsistent with the proportionality provisions of the Federal Rules;
- A Western District of Washington decision quashing a Rule 45 subpoena and rejecting an argument that a Rule 30(b)(6) witness could be required to travel more than 100 miles because documents noted in the subpoena were produced from an office of the subpoena recipient within the 100 mile radius and knowledgeable corporate officers were available from that office;
- A District of Nevada decision stating that raising a discovery dispute over computer imaging and other ESI only by letter and then filing a motion to compel upon not receiving a response was insufficient to satisfy the meet and confer standards under the Federal Rules and local rules; and
- A Middle District of Tennessee ruling rejecting plaintiff’s motion to require defendant to produce documents that did not currently exist, finding that the defendant was not required to create and produce reports using data from defendant’s archives and backup tapes.
- In Nola Spice Designs, LLC v. Haydel Enterprises, Inc., 2013 WL 3974535 (E.D. La. Aug. 2, 2013), Magistrate Judge Joseph Wilkinson denied as overbroad and inconsistent with the Fed. R. Civ. P.’s proportionality provisions Haydel’s motion to compel Nola Spice Designs to produce login information for “all online websites related to this litigation” and to submit Nola’s computer for an “exhaustive forensic examination.”
The case involved a dispute over Mardi Gras “bead dog” jewelry. Id. at *1. During discovery, Haydel argued that Nola Spice Designs (“Nola”) had failed to produce certain information that “should exist,” id. at *4, and filed a motion to compel Nola (i) to produce login information for “all online web sites related to the issues in this litigation, including social media, weblogs, financial information and records,” and (ii) to submit Nola’s computers for an “exhaustive forensic examination” by an “independent forensic expert with access to [the] full electronic content of Nola.” Id. at *1 (internal quotations omitted).
Haydel’s request for Nola’s login information was denied as “far exceed[ing] the proportionality limits” of the Federal Rules of Civil Procedure. Id. The Magistrate Judge acknowledged that “there is no protectable privacy or confidentiality interest in material posted or published on social media,” but noted that Haydel was seeking more, to “roam freely through all manner of personal and financial data in cyberspace pertaining to Nola.” Id.Moreover, the Magistrate Judge found that neither Haydel’s promise to limit the searches nor a protective order “would be effective in controlling the potential for mischief in compelling [Nola] to give Haydel their computer passwords and user names.” Id. The Magistrate Judge concluded that there is “no legal authority . . . that would support such broad-ranging and logistically uncontrollable discovery.” Id.
The Magistrate Judge also denied Haydel’s request to examine Nola’s computers. Although Federal Rule 34(a)(1)(A) allows such examinations, the Magistrate Judge explained, such examinations are not granted automatically and are subject to the proportionality principles of the Federal Rules as well as “significant privacy and confidentiality concerns.” Id. at *2-*3 (citing Fed. R. Civ. P. 26(b)(2)(C)). The Magistrate Judge concluded that Haydel’s request failed that test for two reasons. First, there was no evidence Nola had refused to produce relevant information, and Nola had “repeatedly” insisted that it had produced all relevant information. Id. at *3. Second, Haydel’s argument that the examination was necessary amounted to “mere skepticism” that Nola had withheld relevant information that “should exist,” but such skepticism alone was insufficient to “warrant drastic electronic discovery measures.” Id. at *2. The Magistrate Judge therefore denied the motion to compel.
- In Smyth v. Merchants Credit Corp., 2013 WL 5200811 (W.D. Wash. Sept. 16, 2013), U.S. District Judge Robert S. Lasnik quashed a subpoena, rejecting the argument that a Rule 30(b)(6) witness could be required to travel more than 100 miles because documents noted in the subpoena were produced from the subpoenaed party’s office within the 100 mile radius and knowledgeable corporate officers were available from that office, and also ruled that a party did not need to produce again “in metadata form” documents previously produced in hard copy pursuant to a prior subpoena.
Plaintiff Donna Smyth sued defendant Merchants Credit Corporation for allegedly harassing phone calls regarding debt owed to the non-party PeaceHealth Medical Group. PeaceHealth produced documents relating to plaintiff’s accounts in response to a 2012 subpoena. Dissatisfied, plaintiff filed a subsequent subpoena to produce all documents previously produced in hard copy again “in metadata format,” plus “all e-mails, faxes, or other type of documents” referenced in the documents already produced. Id. at *1. The subpoena also requested the appearance of two PeaceHealth corporate representatives for depositions in Bellingham, Washington to explain the produced documents and the company’s document storage and retention practices.
PeaceHealth filed a motion to quash the subpoena, stating that the request was duplicative of material already produced, that it did not possess the requested additional materials, and that the requested depositions would force its officers to travel more than 100 miles. Plaintiff responded that PeaceHealth had failed to object to earlier requests to produce the discoverable materials in native form, that PeaceHealth was withholding the requested additional documents, and that officers from PeaceHealth’s Bellingham, Washington office, located within the 100 mile radius, had the requisite knowledge and could testify at the depositions.
The district court agreed with PeaceHealth and quashed the plaintiff’s subpoena pursuant to Rule 45, which governs discovery from non-parties and incorporates “Rule 34 and the other discovery rules.” Fed. R. Civ. P. 45(a)(1)(A). First, the court rejected plaintiff’s request that two PeaceHealth officers testify at plaintiff counsel’s offices in Bellingham, Washington. Rule 45 requires a court to quash or modify a subpoena if it requires a party to travel more than 100 miles. Fed. R. Civ. P. 45(c)(3)(ii). Plaintiff argued that some of the documents were produced from PeaceHealth’s Bellingham office and that PeaceHealth executives from that office could have testified. But the Court found that plaintiff had failed to require a particular officer to testify and had instead designated certain topics for testimony as provided for in Fed. R. Civ. P. 30(b)(6). Having designated topics rather than specifying individuals to testify, plaintiff deferred to PeaceHealth to name the appropriate officer(s) who were knowledgeable on the selected topics. The officers designated by PeaceHealth resided more than 100 miles away from the Bellingham, Washington site specified for the deposition, and plaintiff’s subpoena was quashed on that basis. Id. at *2.
Second, the Court also quashed plaintiff’s subpoena seeking reproduction in “metadata form” of ESI already produced. Rule 34 provides that “[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” and “[a] party need not produce the same [ESI] in more than one form.” Id. at *3 (quoting Fed. R. Civ. P. 34(b)(2)(E)(ii)-(iii)). The court found that the first subpoena issued to PeaceHealth did not specify a preferred form of production and that plaintiff did not seek production in native format until after PeaceHealth had produced all of the responsive documents. Thus, the court ruled that “PeaceHealth is not required to re-produce documents previously made available to Plaintiff.” Smyth, 2013 WL 5200811, at *3.
Further, the court found that plaintiff failed to establish that the requested emails, faxes, and other documents referenced in documents already produced were being withheld. The court concluded that “Plaintiff has not provided any evidence that PeaceHealth is withholding these documents or that these are within PeaceHealth’s custody or control.” Id. The court stated it would be an “undue burden” to require PeaceHealth to comply with plaintiff’s request.
- In U-Haul Co. of Nevada, Inc. v. Gregory J. Kamer, Ltd., 2013 WL 5278523 (D. Nev. Sept. 17, 2013), Magistrate Judge C.W. Hoffman, Jr. denied plaintiff’s request to compel discovery because plaintiff raised the dispute with defendant only by letter and thus failed to satisfy the meet and confer and personal consultation requirements of the Federal Rules of Civil Procedure and the local rules.
Plaintiff requested an order compelling production of a computer for forensic analysis, a SIM card, and defendant’s written authorization for release of information from Yahoo, along with further deposition testimony. The motion was filed August 1, 2013, one day after the July 31, 2013 discovery cut-off. The defendant argued, inter alia, that plaintiff’s motion should be denied because plaintiff failed to meet and confer prior to filing its request.
The Magistrate Judge agreed with the defendant and denied plaintiff’s motion. The Magistrate Judge noted Rule 37 requires a party seeking to compel discovery responses to “include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Id. (quoting Fed. R. Civ. P. 37(a)(1)). The local rules for the District of Nevada also require personal consultation before filing a motion to compel. Together, these rules require the moving party to set forth “‘essential facts sufficient to enable the court to pass a preliminary judgment on the adequacy and sincerity of the good faith conferment between the parties.’” U-Haul, 2013 WL 5278523, at *2 (quoting Shuffle Master, Inc. v. Progressive Games, Inc., 170 F.R.D. 166, 171 (D. Nev. 1996)).
The Magistrate Judge ruled that “[p]laintiff’s efforts to engage in meaningful discussions to resolve these discovery disputes were woefully inadequate.” Id. at *3. Plaintiff alleged that it sent a letter to defendant requesting the materials but never received a response. Magistrate Judge Hoffman pointed out that, absent compelling circumstances, an exchange of letters is insufficient to satisfy the meet and confer and the personal consultation requirements. U-Haul, 2013 WL 5278523, at *2 (citing Hunter v. Moran, 128 F.R.D. 115 (D. Nev. 1989). Plaintiff failed to certify that it made any efforts to meet with the defendant, and plaintiff did not even submit the letter allegedly delivered to defendant for the court’s inspection. “Rather than submit the letter for the Court’s review, Plaintiff has simply unilaterally declared that any meet and confer effort would have been futile.” Id. at *3. Such actions did not satisfy the meet and confer requirements, and the Magistrate Judge denied the plaintiff’s request.
The Magistrate Judge also determined that plaintiff had not satisfied the good cause standard for seeking additional time to depose the defendant. Id. Plaintiff claimed additional time was needed to question the defendant regarding the additional requested material. “Because Plaintiff’s motion to compel that information is denied and no other reason to extend the deposition has been provided, there is not good cause to grant additional deposition time.” Id.
- In Watson Carpet & Floor Covering, Inc. v. Mohawk Industries, Inc., 2013 WL 5306444 (M.D. Tenn. Sept. 20, 2013), Magistrate Judge John Bryant denied plaintiff’s motion to compel defendant to create and then produce “comparison sales reports” using data in Mohawk’s archives and backup data tapes on the ground that Rule 34 requires only production of documents that already exist.
This discovery dispute arose when plaintiff moved to compel defendant to produce comparison sales reports “for all regions in Defendant’s company from 2003 through 2012.”Id. at *1. Plaintiff argued that the request was not unduly burdensome because the defendant had already produced similar reports and Mohawk witnesses had “testified in depositions that the data necessary to create [the sales] reports can be derived from Mohawk’s archive and backup data tapes by means of certain modifications in its record-keeping computer system.” Id. Mohawk responded that the request required Mohawk to go beyond the requirements of Rule 34 and “to create reports that do not currently exist” and was unduly burdensome because the “geographic scope of Watson’s request [was] vastly over broad.” Id. (internal quotations omitted).
The Magistrate Judge denied Watson’s motion. Rule 34(a)(1) permits requests for production of “materials within the possession, custody or control of the parties upon which the request is made.” Id. The Magistrate Judge stated that “a request for production cannot require the responding parties to ‘create’ documents that are not already in existence.” Id. As the record was undisputed that the comparison sales reports sought by the plaintiff “did not presently exist, but would need to be created by extracting historical data from archive and backup data storage maintained by Mohawk,” id. the Magistrate Judge ruled that Rule 34 did not require Mohawk to create and produce the requested reports.