Paramount Pictures Corporation v. ReplayTV, Inc., Joint Stipulation ...

12345678910111213141516171819202122232425262728to obtain data for which ReplayTV has concluded it has no business need or use,and which consumer advocacy groups have strongly urged should not be collectedin the first place. Id. at 20.3. Rule 34 Neither Requires Nor Authorizes An Order To Create RecordsThat Do Not Exist.Not surprisingly, Plaintiffs cite no authority for such an order. It is wellsettled that a party is not required to create, either in paper or electronic form, datathat does not currently exist within its possession. Steil v. Humana Kansas City,Inc., 197 F.R.D. 445, 448 (D. Kan. 2000) (party “ cannot be compelled to producedocuments which do not exist” ). Rule 34 “ only requires a party to producedocuments that are already in existence.” Alexander v. Federal Bureau ofInvestigation, 194 F.R.D. 305, 310 (D.D.C. 2000) (emphasis added). “ A party isnot required ‘to prepare, or cause to be prepared,’ new documents solely for theirproduction.” Id. 35/Contrary to Plaintiffs’ assertion, it is not “ settled law” that “ it would be[Defendants’ ] obligation to take the steps necessary to gather the relevant data.”(Joint Stipulation) (emphasis added). 36/Plaintiffs misunderstand Rule 34 and thelaw relating to the discovery of data compilations. It is true that Defendants may beSee also Rockwell Int’l Corp. v. H. Wolfe Iron & Metal Co., 576 F. Supp.511, 513 (W.D. Pa. 1983) (defendant “ cannot be compelled to create, upon therequest of the plaintiff, documentary evidence which is not already in existence insome form;” Rule 34 “ is limited in its scope to documents ‘which are in thepossession, custody, or control of the party upon whom the request is served.’ “ );Soetaert v. Kansas City Coca Cola Bottling Co., 16 F.R.D. 1, 2 (W.D. Mo. 1954)(“ Rule 34 cannot be used to require the adverse party to prepare, or cause to beprepared, a writing to be produced for inspection, but can be used only to requirethe production of things in existence.” ) (emphasis added).36/Plaintiffs have failed to cite a single case under Rule 34 in which a party wascompelled to gather electronic data from a third party. The only case cited byPlaintiffs, Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978), is not a Rule34 case, but rather involved defendant’ s duty under Rule 23 in a class action toprovide names and addresses of the class members for notice purposes. That courtspecifically noted that it was Rule 23, not the discovery rules, that authorized adistrict court to order a defendant to provide such information. Id. at 356.35/48