Product Liability 2009 - Arnold & Porter LLP

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International Electronic Discovery Carroll, Burdick & McDonough International
reasoning in not awarding sanctions against the defendant in
the Williams case. See Williams v. Sprint/United Mgmt. Co.,
2007 WL 214320 (D. Kan. Jan. 23, 2007).
8 See Autotech Techs. Ltd. v. Automationdirect.com, Inc., 2008
WL 902957 (N.D. Ill. Apr. 2, 2008) (holding that the plaintiff
need not produce a word processing document in its native
format with the metadata intact, where the plaintiff had
produced the document as a PDF and in hard copy and the face
of the document itself included a “Document Modification
History” and where the defendant neither specified the form of
production nor did it request the production of metadata at the
time of its initial requests); D’Onofrio v. SFX Sports Group,
Inc., 247 F.R.D. 43, 48 (D.D.C.2008) (holding that metadata
need not be produced since the requesting party failed to
specifically mention metadata in its original requests);
Kentucky Speedway, LLC v. Nat’l Ass’n of Stock Car Auto
Racing, Inc., 2006 US Dist. LEXIS 92028, at *21-23 (Dec. 18,
2006) (ruling that Rule 34(b) does not require the production of
metadata absent a showing of a particularised need, and the
failure to raise the issue prior to production waives the
opportunity to object: “[T]he issue of whether metadata is
relevant or should be produced is one which ordinarily should
be addressed by the parties in a Rule 26(f) conference.”). See
also Wyeth v. Impax Lab., 2006 WL 3091331, at *2 (D. Del.
Oct. 26, 2006) (ruling that production in native format was not
required in the absence of foreseeable or necessary requirement
for accessing metadata). But see Superior Prod. P’ship v.
Gordon Auto Body Parts Co., Ltd., 2008 WL 5111184 (S.D.
Ohio Dec. 2, 2008) (ordering production in native format after
finding such a preference in US FRCP 26 and a benefit due to
the ease at which electronic documents can be stored and
manipulated during the litigation process).
9 Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468,
1474 (9th Cir.1992) (citations and internal quotations omitted).
See generally Societe Nationale Industrielle Aerospatiale v.
U.S. Dist. Ct for the S. Dist. of Iowa, 482 U.S. 522(1987).
10 See, e.g., PSEG Power New York, Inc. v. Alberici Constructors,
Inc., 2007 WL 2687670 (N.D.N.Y. Sep. 7, 2007) (holding the
plaintiff and counsel responsible for a software glitch that led
to the “divorce” of e-mails and attachments in a production of
ESI and ordering the re-production of the documents with the
e-mails and attachments “married” - at an estimated cost of
between US$37,500 and US$206,000).
11 See, e.g., PSEG Power New York, Inc. v. Alberici Constructors,
Inc., 2007 WL 2687670 (N.D.N.Y. Sep. 7, 2007) (holding the
plaintiff and counsel responsible for a software glitch that led
to the “divorce” of e-mails and attachments in a production of
ESI and ordering the re-production of the documents with the
e-mails and attachments “married” - at an estimated cost of
between US$37,500 and US$206,000).
12 Australian Federal Court Rules O1, r4.
13 The factors are: (1) the specificity of the discovery requests;
(2) the likelihood of discovering critical information; (3) the
availability of such information from other sources; (4) the
purpose for which the responding party maintains the requested
data; (5) the relative benefit to the parties of obtaining the
information; (6) the total cost associated with the production;
(7) the relative ability of each party to control costs and its
incentive to do so; and (8) the resources available to each party.
Each factor was weighted, with factors 1-3 carrying more
influence than the other factors, even though all factors were
deemed important.
14 In formulating this factor, the court followed McPeek v.
Ashcroft, 202 F.R.D. 31 (D.D.C. 2001), where the court ordered
the producing party to restore the electronic data at issue, to
“carefully document the time and money spent,” in doing so, to
search the restored data for responsive documents, and to “file
a comprehensive, sworn certification of the time and money
spent and the results of the search.”
15 The factors are, in order of weight given: (1) the extent to
which the request is specifically tailored to discover relevant
information; (2) the availability of such information from other
sources; (3) the total cost of production, compared to the
amount in controversy; (4) the total cost of production,
compared to the resources available to each party; (5) the
relative ability of each party to control costs and its incentive to
do so; (6) the importance of the issues at stake in the litigation;
and (7) the relative benefits to the parties of obtaining the
information.
16 The Advisory Committee factors are: (1) the specificity of the
discovery request; (2) the quantity of information available
from other and more easily accessed sources; (3) the failure to
produce relevant information that seems likely to have existed
but is no longer available on more easily accessed sources; (4)
the likelihood of finding relevant responsive information that
cannot be obtained from other, more easily accessed sources;
(5) predictions as to the importance and usefulness of the
further information; (6) the importance of the issues at stake in
the litigation; and (7) the parties’ resources.
17 Likewise, in Lytle v. Ford Motor Co., 2003 WL 23855089 (Ind.
Cir. Ct. Apr. 19, 2003) (unpublished), the court denied a
plaintiff’s request “to go into Ford’s databases and look for any
relevant information that might be there,” finding the request
for production to be overbroad and unduly burdensome. See
also Integrated Serv. Solutions, Inc. v. Rodman, 2008 WL
4791654 (E.D.Pa. Nov. 3, 2008) (not requiring a non-party to
allow the plaintiff, a competitor, to “thumb through an
electronic file drawer” to double-check document review for
relevance). But see Bray&Gillespie Mgmt. LLC v. Lexington
Ins. Co., 2009 WL 546429 (M.D. Fla. Mar. 4, 2009) (allowing
access to the plaintiffs’ database after numerous e-Discovery
violations); GTFM, Inc. v. Wal-Mart, 2000 WL 1693615
(S.D.N.Y. Nov. 09, 2000) (the defendant’s failure to produce
data or provide and accurate description of the computer
system led to an order allowing the plaintiff’s lawyer and expert
to examine the defendant’s computer system to look for the
requested information at the defendant’s expense).
18 See S. New Eng. Tel. Co. v. Global NAPs, Inc., 2008 WL
2568567 (D.Conn. June 23, 2008) (issuing a default judgment
in favour of the plaintiffs, resulting in an award of US$
5,247,781.45, plus costs and fees of ca. US$ 645,760 due to the
defendants’ “willful disregard for the process of discovery,”
including the willful violation of a court order to produce
general ledgers, the use of wiping software to intentionally
destroy evidence, lying to the court about the ability to obtain
documents from third parties, providing misleading answers to
discovery requests, and given the defendants’ long history of
violating discovery orders); Grange Mut. Cas. Co. v. Mack,
2009 WL 744723 (6th Cir. Mar. 17, 2008) (affirming the trial
court’s granting of a default judgment in favour of the plaintiffs
for damages plus attorney’s fees and costs where the defendant
purposely delayed discovery, ignored court deadlines and
orders, and instructed employees to ignore the same). For prior
sanctions cases, please refer to the 2006-2008 “International
Electronic Discovery” chapter in The International
Comparative Legal Guide to: Product Liability 2006, 2007 &
2008, respectively, published by Global Legal Group Ltd,
London.
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