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Another Case Favors Native Format When It Comes To Production - IT-Lex | IT-Lex Another Case Favors Native Format When It Comes To Production - IT-Lex

Another Case Favors Native Format When It Comes To Production


burden500By IT-Lex Intern Amber Williams (LinkedIn

A New York case from earlier this month revisits a favorite topic here at IT-Lex: form of production in discovery and who has to pay for it. Plaintiffs brought suit against their insurance provider for breach of contract, negligent misrepresentation, and professional negligence.  As part of their insurance package, plaintiffs were apparently assured by their agent that if anything happened, the agency would provide “full replacement value” for their lost or stolen personal items.  But, after plaintiffs’ apartment was broken into in July of 2012 with losses totaling $158,000, defendants’ assignee paid $44,000 to plaintiffs, who filed the suit to recover the remaining $114,000. In the instant motion, plaintiffs sought to compel, among other things, “electronic version of Fingar’s electronically stored information in native format and with TIFF images.”

Defendants opposed and cross-moved against all of the requested documents.  Plaintiffs also sought “electronically stored information (“ESI”) in native form with TIFF images at Fingar’s expense in order to view document metadata.”  Fingar opposed, saying that metadata did not have anything to do with this lawsuit, plaintiffs weren’t entitled to the information, and plaintiffs should be the ones to pay for it ($3,500 to produce the documents).

The court looked to CPLR § 3101(a), which in part says that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.” The court found that all of the documents save one were material and necessary.  The court then analyzed whether plaintiffs requests were “palpably improper,” meaning the request “seeks information which is irrelevant or confidential, or is overbroad and unduly burdensome.”

After the court reviewed the case, the court issued judgment for the plaintiffs and granted all of their document requests for documents in native form with TIFF images, except for one that defendant’s opposed in a cross motion for an unredacted version of a document plaintiffs had already acquired.  The production of the documents is the defendant’s responsibility. As for costs, since the defendants had to produce, they would have to pay, unless the seven cost-shifting factors were met:

“1. [t]he extent to which the request is specifically tailored to discover relevant information; 2. [t]he availability of such information from other sources; 3. [t]he total cost of production, compared to the amount in controversy; 4. [t]he total cost of production, compared to the resources available to each party; 5. [t]he relative ability of each party to control costs and its incentive to do so; 6. [t]he importance of the issues at stake in the litigation; and 7. [t]he relative benefits to the parties of obtaining the information.”

It was held that there was no basis to shift, and so defendant ended up ordered to produced and ordered to pay.

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