Litigant Loses Request For Electronic Data, Has To Make Do With Paper

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burden500By IT-Lex Intern Rachel Paxton-Gillilan (LinkedIn)

As most lawyers know, the format of eDiscovery production is pretty important.  However, as we have discussed before, it is the lawyer’s responsibility to convince the court of the need for a specific production format. In a recent case out of California, Magistrate Judge Nathanael M. Cousins concluded that the defendant must make do with paper copies of electronic records, as opposed to having them in a searchable, electronic format.

The underlying case involves a labor dispute between the United States Department of Labor and the Seafood Peddler restaurant about overtime wages, records maintenance, and retaliation claims.  In response to Seafood Peddler’s discovery request, the Secretary of Labor produced approximately 900 pages of paper copies of records retained in a government document database.  The Defendant, upset with the form of production, filed a motion seeking additional production of electronic copies.

The court seemed to have little patience for the motion, finding that “defendants [had] ample opportunity to obtain the relevant information through paper copies and have not established the necessity for a duplicative electronic production.”  The court specifically noted that the “defendants have raised no more than speculation as to the potential benefit of a duplication production of electronic data.”

But more importantly, the court called out both parties on their failure to communicate under FRCP 26(f) about the discovery process, including the format:

[I]n five single-space pages of argument, the parties make no mention of early communication to resolve issues about format of production.  Some basic communication and reasonableness at the start of the case might have prevented an unnecessary discovery motion near the end.

This case should serve as a warning that, not only is it the lawyer’s responsibility to convince the court of the need for specific form of production, the lawyer must also make every effort to work with opposing counsel prior to bringing a discovery dispute to the court.  Courts often dislike discovery disputes, and before bringing one to the court, lawyers should be able to show that they did everything they could to solve the problem.

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