Dealing with Discovery in the Too Much Information Age

 

Frank H. Gassler

 

I.

Introduction

 

The advent of computers has revolutionized the way information is stored. For all practical purposes, society has become paperless.  Fewer and fewer individuals and corporations store all of their records in drawers and file cabinets.  Instead, millions of documents have been reduced to electronic bits, bundled into bytes, kilobytes and gigabytes, and stored on hard drives, servers, floppy discs, CD roms and DVDs.  In fact, thousands of pages of information can be stored on similar devices that fit in the palm of a hand.

Information also may be stored in the form of e-mails and voice mails which, even if deleted, may be easily retrieved.  Information can also be shared using the internet, and transmitted to remote locations throughout the world.  Moreover, electronic data generally can be read, reviewed, indexed, reformatted and manipulated in a variety of ways.  Among the unintended results of this electronic information boom is the vast quantity of information conceivably subject to a discovery request.

Using the Federal Rules of Civil Procedure as a guide, Rule 26(b)(1) cuts a wide path.  It enables parties to “obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending litigation,” even if the information sought is not admissible at trial.[1]  However, while Rule 26(a)(1) specifically addresses “documents, data compilations, and tangible things,” the Rule fails to provide any special provisions for the discovery of documents or data stored in electronic format.[2]  Very little guidance is available in the reported case law either.  Generally, discovery disputes are resolved in courts of general jurisdiction.  The determinations of these courts are largely interlocutory in nature and may not be subject to immediate appellate review.  Consequently, there are few appellate decisions on point. The published opinions, primarily rendered by judges presiding in the United States District Courts, demonstrate that pre-trial discovery procedures for documents in data bases are often fashioned on a case-by-case basis.  Notwithstanding these limitations, however, some basic rules appear to have evolved.

            The purpose of this article is not to discuss the technical aspects of how electronic data can be created and stored.  A complete discussion of such topics can be found in Universal City Studios, Inc. v. Reimerdes.[3]  Nor is it the intent to discuss the deficiencies in the Federal Rules with respect to electronic discovery.[4]  Instead, the purpose of this article is to suggest practical solutions to some very difficult problems and concerns regarding the production of information stored as electronic data.

 

II.

Defining the Problem

            It is no longer uncommon that a request for production of documents include some language requiring the responding party to produce documents of any type or nature, whether stored in hard copy or electronically.  Parties can also request information contained on e-mails and voice mails.  Moreover, a request might encompass certain electronic data that was previously deleted, but may have been stored inadvertently on backup discs, hard drives, servers or in other places.  There is little doubt that the universe of discoverable information may seem endless, and the preparation of a fully compliant discovery response may seem totally unmanageable and unpractical, or even impossible.

            Federal Rule of Civil Procedure 34(a) allows a party to request from any other party “writings, drawings, graphs, charts, photographs, phone records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form.”[5]  Courts have found that “[c]omputer data is included in Rule 34’s description of documents.”[6]  However, the notion that a party should be required to produce information in computerized form is not new.  For example, in Adams v. Dan River Mills, Inc.,[7] the court ordered that defendant produce its current computerized master pay-roll file and all computer print-outs for W-2 forms, despite the fact that the plaintiff had access to computer print-outs bearing the same information.  Moreover, courts have found that computerized data can include voice mail messages and files, e-mail messages and files, data files, program files, temporary files, back-up files, archival tapes, cache files, cookies and other electronically recorded information.[8]

Under Rule 34(b), a respondent is not only required to produce the requested documents and other information, but also to “produce them as they are kept in the usual course of business or . . . organize and label them to correspond with the categories of the request.”[9]  As a result, courts have required parties to produce computerized documents in a form that was usable to other parties.[10]  Furthermore, the Advisory Committee Notes contained in the 1980 amendment to Rule 34 clearly indicate that the Committee wanted to prevent parties from deliberately mixing critical documents with others in the hope of obscuring their significance.  Moreover, under Rule 33(d), wholesale dumping of documents is not allowed.[11]  In short, a response to a discovery request must not only be complete; it also must assume a form that complies with the Federal Rules.

With all of this in mind, preparing a complete and accurate discovery response can be a monumental task.  Trial courts ordinarily will permit evidentiary hearings to determine if the production of computer information “is merely time-consuming and laborious (impracticable) or it is impossible.”[12]  However, in Bills v. Kennecott Corp., the court found that:

. . . certain propositions will be applicable in virtually all cases, namely, that information stored in computers should be as freely discoverable as information not stored in computers, so parties requesting discovery should not be prejudiced thereby; and the party responding is usually in the best and most economical position to call up its own computer stored data.[13]

III.

Dealing with the Costs

A. The General Rule

With respect to discovery, it is prescribed that “[u]nless the task of producing or answering is unusual, undue or extraordinary, the general rule requires the entity answering or producing the documents to bear that burden.”[14]  The mere fact that compliance with discovery would be costly or time consuming, especially if the problem is exacerbated by the responding party’s own manner of keeping records, is not sufficient to refuse compliance with discovery requests.[15]  For example, in a situation where a bank argued that it could not read its own records unless it went to the time and expense of photocopying them from microfilm, the court held that the bank would have to bear the expense of producing the documents for inspection.[16]

In another case, relying upon the decision in Bills, a court found that CIBA-Geigy Corporation should bear the estimated cost of $50,000 to $70,000 to search over thirty million pages of e-mail data stored on its technical back-up tapes pursuant to a document production request.  Although the court conceded that the Manual for Complex Litigation[17] offered some support for CIBA’s position, it ultimately found that “relevant case law instructs that the mere fact that the production of computerized data will result in substantial expense is not a sufficient justification for imposing the cost of production on the requesting party.”[18]  The court insisted on examining other factors to determine if the effort was inordinate and excessive, including “factors such as whether the relative expense and burden in obtaining the data would be greater to the requesting party as compared to the responding party, and whether the responding party will benefit to some degree in producing the data in question.”[19]  The court went on to note:

On the one hand, it may seem unfair to force a party to bear the lofty expense attendant to creating a special computer program for extracting data responsive to a discovery request.  On the other hand, if a party chooses an electronic storage method, the necessity for a retrieval program or method is an ordinary and foreseeable risk.[20]

B. Shifting the Costs

Typically, courts are reluctant to shift costs since “[t]he normal and reasonable translation of electronic data into a form usable by the discovering party should be the ordinary and foreseeable burden of a respondent in the absence of a showing of extraordinary hardship.”[21]  However, courts are empowered to shift costs between litigants upon a showing of “undue burden or expense.”[22]

            The notion of cost shifting is not new, but the general rule has followed the opposite.  For example, in In re Korean Airlines Disaster of September 1, 1983,[23] the court found that each party must finance its own lawsuit.  In that case, such costs included translating foreign language documents into English.  A similar result obtained in Cook v. Volkswagen of America, Inc.[24]

            The United States Supreme Court issued an early decision that discussed cost shifting in Oppenheimer Fund, Inc. v. Sanders.[25]  In that case certain class members sought to require the defendant to bear the costs of identifying other class members by causing defendant’s transfer agent to make available certain computer tapes from which class members could be identified.  To provide such information, the agent needed to sort manually through numerous records, keypunch up to 300,000 computer cards, and create a whole new computer program.  The class members argued that the Fund had opposed redefining the class as well as the means for providing notice; it noted as well that the cost was relatively insignificant ($16,000) in light of the Fund’s total assets ($500,000).  Rejecting these arguments, the Supreme Court determined that the Fund should direct the transfer agent to make the information available, but that the members should bear the costs.  Interestingly, the Court also observed that the Fund should not have to bear the expense simply because the information was stored on computer tapes rather than in less modern forms.

            Despite the holding in Oppenheimer, courts still may shift discovery costs.[26]  A distinction may be drawn between producing data compilations for inspection or copying as compared with sorting or analyzing that data.  Should “sophisticated electronic manipulation and analysis” become necessary, the court might consider shifting the expense.[27]

In Sattar v. Motorola, Inc.,[28] the plaintiff sought to compel the defendant to produce approximately 210,000 pages of “hard copy” e-mails at its own expense.  The defendant had already produced the e-mails in the form of four-inch tapes, but the plaintiff lacked the necessary equipment and software to read the tapes.  The circuit court agreed with the district court that:

. . . a more reasonable accommodation was some combination of downloading the data from the tapes to conventional computer discs or a computer hard-drive, or loaning [the plaintiff] a copy of the necessary software, or offering [the plaintiff] on-site access to its own system.  If all of those options failed, the court ordered that the parties would each bear half the cost of the copying.[29]

 

IV.

Substituting Hard Copies for Electronic Data

            At times, a party might consider producing hard copies of requested documents instead of electronically stored data either for convenience or as a strategic move.  However, the law is unclear as to whether a party truly has that option.

            Without reaching a final decision, the court in Anti-Monopoly, Inc. v. Hasbro, Inc.[30] provided some insight into the balancing test that applies when determining whether responding parties are required to produce electronic versions of documents that already have been produced in hard copy.  The court’s opinion is quite instructive.  In Hasbro, the defendant agreed to produce sales and discount data in various forms, sorted by item, customer, year or month.  The data covered reports the defendant used in its normal course of business.  The defendant did not choose to withhold electronic versions of its reports; rather, the reports no longer existed in electronic form.  The plaintiff, however, had sought not only sales and discount data, but electronic versions of all invoice and credit memos generated by the plaintiff over a four-year period.  As the court noted:  “The [plaintiff’s] burden of . . . collecting all of these electronic invoices is substantial and certain: weeks of programming and computer time to collect the invoices followed by substantial attorney review time to ensure that they are responsive.”[31]

The court recognized that it had insufficient information to determine whether the plaintiff truly needed electronic invoices (in light of other available discovery), and whether defendants should be required to create a program to collect that data.  Therefore, the court requested that the parties meet and confer to resolve their dispute.  The court concluded that its eventual ruling might depend upon the plaintiff’s willingness to bear the defendant’s cost in creating the required program.  The court also questioned whether defendant’s reports were available electronically, or whether it was possible to re-create those reports electronically by running a computer program over the existing computerized business data. The Hasbro case is significant because it demonstrates that trial courts possess alternatives beyond merely allocating costs. Significantly, courts may require that parties meet specific instructions in determining how to resolve evidentiary disputes.

            Likewise, in Williams v. Owens-Illinois, Inc.,[32] the court found that the district judge did not abuse his discretion in entering a pre-trial order denying appellant’s request to obtain certain computer tapes.  The employment discrimination resolution was based on a determination that all information contained on the computer tapes was included in wage cards that appellants had already discovered.  Although the court conceded that using the cards “may be more time consuming, difficult and expensive,” the appellants were not deprived of any data.[33]

In yet another discovery dispute, the court refused to allow the plaintiff’s broad demand asking that the defendant disclose its entire computerized system.  The court reasoned: 

The mere possibility that a party might not produce all relevant, unprotected documents, is not a sufficient basis for ordering such a party to disclose its entire computerized system of information management.  Nor should the possibility the lawyer could better frame his discovery request serve as sufficient predicate for ordering disclosure of proprietary information about a computer system. . . . At a minimum, counsel who seek access to opponents’ information management systems should be required to show that conventional discovery methods have failed to produce the information they need to litigate their case.[34]

            A contrary result obtained in National Union Electric Corp. v. Matsushita Electronic Industrial Co.[35]  In that case the court ruled that computerized data could be discovered even though paper copies of the same information already had been produced.  The defendants conceded that they could replicate the data by having clerical personnel manually create a data base, though the process was estimated at two months and many thousands of dollars.  In reaching its decision, the court first discounted a work-product issue, noting that although the data base was compiled under counsel’s direction, it contained no mental impressions, conclusions, opinions, legal theories or trial strategy. Nor was the court persuaded that plaintiff would be required to create a new electronic document since a specialist could simply substitute instructions used to extract and print the computer reports on paper with instructions to print the results in computer-readable form.  Had the expense been more costly for the plaintiff, the court might have denied defendant’s request or provided that the defendant pay the cost of creating the data base and downloading the information.

            A different rule might apply, however, if the data no longer exists at all.  In Torrington Co. v. Federal-Mogul Corp.,[36] the court refused the plaintiff access to:  1) a computer tape or computer program instruction; 2) a computer tape containing information from each data set processed by the computer program, and 3) a hard copy for each file transmitted on tape.  The plaintiff sought access under a judicial protective order, but the court denied the plaintiff’s motion.  The court found that the data did not exist and that the defendant would be required to create the computer tapes at a heavy burden and great expense.

It should be noted that if a party does not produce records “as they are kept in the usual course of business,” a court probably will require that party to label and organize its documents in order to make them usable by the requesting party.  This remedy was advanced in Bd. of Educ. of Evanston Township High School v. Admiral Heating & Ventilating, Inc.[37] The court there specifically determined that “[a] party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories of the request.”[38]

Neither does Rule 33(d) allow for the wholesale dumping of documents.  In T.N. Taube Corp. v. Marine Midland Mortgage Corp.[39] the court analyzed the defendant’s responses to plaintiff’s Interrogatories.  The responses were dependent, in part, on defendant’s prior discovery response consisting of 789 unlabeled papers haphazardly stored in a cardboard box.  Although the court refused to sanction the defendant, it questioned whether the documents were maintained in this fashion at defendant’s business. The court then ordered the defendant to respond to the Interrogatories separately and to organize the documents in a manner consistent with plaintiff’s specific requests. In the end, it may be substantially cheaper to produce documents as they are ordinarily kept in electronic format, rather than to print, organize and label them pursuant to court directive.

 

V.

Preserving Privileges and Protecting Property

A. General Considerations

            In light of the great quantity of information produced under some document requests, the courts must make an effort to ensure that privileged or confidential information is protected and that safeguard restrictions are instituted to minimize potential harm to a party’s computer system.  For example, in Strasser v. Yalamanchi,[40] two plastic surgeons were engaged in a contract dispute. The plaintiff sought permission from a Florida state court to enter defendant’s computer system to search for certain financial information which the defendant claimed to have purged from the system. After the defendant’s objections to the search were overruled, the defendant sought an interlocutory appeal by petitioning for writ of certiorari.  The district court of appeal issued the writ, finding that the trial court had granted unrestricted access without protecting privileged or confidential information, and without instituting safeguards to minimize potential harm to the computer system.  In its determination, the appellate court provided instruction to the trial court:

If plaintiff can present evidence to demonstrate the likelihood of retrieving purged information, and if the trial court finds that there is no other less intrusive manner to obtain the information, then the computer search might be appropriate.  In such an event, the order must define parameters of time and scope, and must place sufficient access restrictions to prevent compromising patient confidentiality and to prevent harm to defendant’s computer and data bases.  One alternative might be for defendant’s representative to physically access the computer system in the presence of plaintiff’s representative under an agreed-upon set of procedures to test plaintiff’s theory that it is possible to retrieve this purged data.[41]

 

            In a similar case, the Fifth Circuit Court of Appeals determined that the district court had not abused its discretion in refusing to grant plaintiff access to defendant’s hard drive.[42]  Interestingly, the district court initially had held a conference to establish a method for accessing  the defendant’s hard drive.  The plaintiff sought access to determine when a particular document was created as opposed to being “auto dated” by the computer.  The trial court had indicated that the “discovery would be allowed only if the protocol ensured that the hard drive access would have a ‘minimal degree of intrusion time-wise and interference-wise’ with [defendant’s] operations, and if it provided ‘adequate assurances of confidentiality.’”[43]  The plaintiff then sought to “mirror” the defendant’s entire hard drive, and to take the “mirror copy” to its facility for analysis.

The defendant responded with a different protocol that included examination of the “mirror copy” by a technician for the limited purpose of determining the creation date or modification date of the relevant files.  The defendant also sought an order protecting the confidentiality of any information not relating to the creation, modification or erasure of the particular files.  After reviewing both protocols the district court determined that “its earlier decision had been ‘ill-advised’ because it would involve ‘a fishing expedition’ without any particularized likelihood of discovering appropriate information, ‘while,’ at the same time, the process involves substantial risks and costs.”[44]  Under the circumstances, the Circuit Court of Appeals concluded that the trial judge did not abuse his discretion in reversing the decision to compel production.

B. Attorney / Client Communications and Work Product

An effort must be made as well to protect attorney/client communications and work product.  Although inadvertent disclosure of privileged documents might not constitute a waiver,[45] an inadvertent production of privileged material may, in some cases, waive the privilege forever.[46]  Therefore, it is imperative that the courts indulge some measure to ensure that no privileged material is inadvertently disclosed.  Requiring counsel for the responding party to examine every document contained in a data base before disclosure might pose a solution, but that solution may not be practical.  Alternatively, the court might appoint a computer expert, as an officer of the court, to retrieve only those documents that are relevant, responsive and non-privileged.

            In Playboy Enterprises, Inc. v. Welles,[47] a magazine publisher sued a former “Playmate of the Year” for trademark infringement.  In the course of discovery, Playboy requested access to Welles’s hard drive to recover e-mails that she claimed to have deleted. Welles objected on the grounds that Playboy’s request was defective. She asserted that information stored on her personal computer should not be discoverable because her business would suffer financial loss from the shutdown required to recover information from the hard drive.  When addressing these issues, the court first determined that Playboy’s comprehensive request for the “production of documents relating to documented communications between Defendants, between Defendant and non-parties, and documents and communications relating to financial, marketing, development, trademark, advertisement, and promotional issues pertaining to Defendant’s web-site, as well as any documents or communications relating to Plaintiff, the instant litigation, or any issues raised therein” was not procedurally defective and was broad enough to encompass production of the e-mail messages.[48]  The court also acknowledged that since the e-mails were deleted, the only means of retrieval would involve accessing the hard drive of defendant’s computer.

The defendant Welles responded that her computer was used for both business and personal communications, but she was unable to cite any case law exempting electronically stored data from discovery.  The court observed that, “[t]he only restriction in this discovery is that the producing party may be protected against undue burden and expense and/or invasion of privileged matter.”[49] Addressing the issue of undue burden and expense, the court employed the balancing test articulated in Federal Rule of Civil Procedure 26(b)(2), deciding that Playboy’s need for the information outweighed any burden on the defendant.  The court then devised a protocol that provided defendant’s counsel with “an opportunity to control and review all of the recovered e-mails, and produce to Plaintiff only those documents that are relevant, responsive and non-privileged.”[50]  An outside expert was retained to act as an officer of the court, producing a mirror image of the defendant’s hard drive for the purpose of recovering the deleted e-mail messages.  To the extent that the computer specialist had access to privileged information, the court determined that no privilege would be waived.  It should be noted that when implementing this protocol, the court requested the expert to prepare a declaration addressing both the defendant’s and the court’s feasibility concerns.

C. Litigation Data Bases

Some courts have drawn a distinction between data bases that are prepared at the request of counsel in connection with litigation and those that are kept in the ordinary course of business.  For example, in Santiago v. Miles,[51] a distinction was drawn between two classifications of computer-generated printouts.  One class of printouts was prepared at the request of counsel; these were protected as “work product.”  The other class was prepared in the ordinary course of business; these were not protected.[52]

A somewhat different result obtained in Williams v. E.I. du Pont de Nemours & Co.[53]  In that  Title VII case, the defendant sought to recover a data base and related computer code books created by the Equal Employment Opportunity Commission from information discovered from the defendant.  The defendant had produced thirty years of employment records and related documents for the Commission.  The Commission later converted the materials into computer-readable data using an expert. The Commission developed the data base to prove the defendant’s violation, using statistical evidence.  The defendant in turn requested a copy of the computerized data base, including “the codebook, all documents used in encoding the database, documents relating to the programs used to create the data base, the user’s manual and all print-outs generated through the use of the data base.”[54]  The Commission admitted that while computer-stored information is generally discoverable, discovery should not be permitted in this case.  The Commission reasoned that: (1) the defendant’s request exceeded the scope of discovery as permitted under the Federal Rules of Civil Procedure; (2) the request was overly broad and burdensome, and (3) the information underlying the experts’ reports (namely the raw data) was in the defendant’s possession.  The plaintiff also asserted that the information sought was work product, and the defendant had failed to demonstrate that the same information was not available elsewhere without undue hardship.

The defendant responded, arguing that:  (1) the information was essential for the effective cross-examination of the Commission’s expert; (2) the data base had to be physically examined for accuracy; (3) the contents of the data base needed to be fully understood in order to properly analyze the data output, and (4) it would be time-consuming, duplicative and expensive to have defendant’s clerical personnel create an identical data base manually.  The court subsequently found that defendant’s need to manually encode the massive documentation originally provided to the Commission would constitute an “undue hardship” under Federal Rule of Civil Procedure 26(b)(3).  It also agreed with the defendant that access to the code books and the user’s manual was necessary for effective cross-examination.  However, it determined that the defendant’s request for documents regarding programs used to create the data base and print-outs generated through use of those programs was overly broad.  The court was concerned that such documentation might reveal other methods of analysis outside the scope of the expert’s report.  Finally, the court refused defendant’s request that the Commission produce its copyrighted computer program.

VI.

Some Caveats

A. Candor with the Tribunal

Parties are expected to respond candidly and completely to requests for electronic data.  In a class action RICO suit, Bonilla v. Trebol Motors Corp.,[55] the trial judge sanctioned defendants for their recalcitrance during discovery by imposing attorneys’ fees. Specifically, one of the defendants was required to identify the names and addresses of persons who purchased certain Volvo automobiles.  The court sought a list of individuals and other relevant data for use in identifying class members.  The defendant initially informed the court that its computer was not equipped to generate such a list in the format sought by plaintiffs.  Later, the defendant admitted that it could produce the report in the format requested.   The court determined that defendant would be fined $100,000 per day and its counsel $5,000 per day for every day of delay in producing the information.  The defendant responded with printouts containing purchaser names, but the submission did not take the proper form.  Defendant had claimed that its computer system was inoperative, preventing the merger of multiple sources of information. The court responded with the following rebuke: “[the defendant’s] initial response regarding the limitations of its computer was unforthcoming -- it should have advised the Court immediately regarding the kind of programming that was necessary and the amount of time it needed to produce print-outs.”[56]  These words illustrate that a discovery response must not only be candid – it must be specifically candid.

B. Preserving Electronic Documents

Likewise, parties should be careful to implement a suitable electronic document preservation program.  Sanctions have followed as well for that failure.[57]

VII.

Recommendations

A. Anticipate the Obvious

Parties must expect requests for electronically stored data.  In that regard, counsel should meet with the client to determine what information exists, where it is located, how it can be retrieved, and how it can be protected against inadvertent destruction.  Counsel should also determine whether the client has a document retention program for electronically stored information that may auto delete some documents.  It is important to ascertain whether deleted files still exist and whether they can be restored.  The client should be asked as well whether the computer system has been updated recently, and whether data stored on an older system can still be accessed.  In addition, if no in-house computer specialist is available, it may be necessary to hire an expert to work with the client and ensure that the information supplied is accurate.  This last recommendation is critical because some clients are not fully aware of how their own computer systems operate.  Furthermore, it may be necessary to determine whether the client uses commercially available software to run programs, or whether the programs are proprietary.  Finally, counsel should ascertain whether copies of the information are readily available, since a court may require the client to produce all information within the client’s control.[58]

Finally, counsel should recognize that the client might incur great cost complying with discovery requests. These costs should be discussed candidly with the client to determine how they might be minimized.

B. Act Promptly

If a party receives discovery requests directed at electronically stored information, counsel should determine how much time it will take to gather the information and frame a response.  Counsel also should decide whether to respond electronically or with hard copy.  If the response will occur electronically, will the client provide the software necessary to read it?  If the response will issue in hard copy, will the documents be produced as they are ordinarily kept in the course of the client’s business, or will they be organized in useable fashion?  Counsel must inform the requesting party how the client plans to proceed. If a legitimate dispute exists, counsel should immediately seek a protective order from the court rather than waiting until a response is due.

C. Counsel’s Personal Review

Ordinarily, counsel should personally review all of the information that the client intends to produce.  Unfortunately, with the large volume of materials that can easily be stored on a computer, this may not be possible.  Assistance is available from professional consultants who can help to organize documents and enter them into data bases.  If such assistance is sought from an outside vendor, counsel should ensure that no privileges will be waived. By organizing the client’s documents in a particular way, however, counsel may be creating other discoverable documents (i.e., the data bases themselves).  Thus, counsel should create a “privilege log” while reviewing the documents and prevent multiple reviews of the same information.

D. Allocation of Costs

If appropriate, the court should allocate the costs of responding to discovery.  This is particularly true if the client cannot simply provide the documents without first creating some type of new data base.

E. Establish a Protocol

If the discovering party wants to explore the client’s computer, counsel should institute adequate safeguards.  These should:

1.      protect the confidentiality of the client’s information;

2.      avoid the disclosure of any privileged matter;

3.      provide for a quick return of any privileged information that may be disclosed inadvertently, without waiving any privilege;

4.      ensure that the client’s computer system will not be damaged; and

5.      keep any intrusion to a minimum.

 

VII.

Conclusion

The parties should expect to do what is reasonable based upon the particular case or controversy. Frivolous objections to legitimate discovery requests should be minimized.  However, counsel should be proactive.  If a request is overly broad, objection is appropriate.  If the same information can be secured by less intrusive and expensive means, a protective order is the proper remedy.  To the extent possible, the parties should seek a solution while avoiding obstructionism. The goal must be relevant discovery within reasonable bounds.


ENDNOTES

 



            Submitted by the author on behalf of the FDCC Products Liability and Toxic Tort & Environmental Law Sections.

[1]           Fed. R. Civ. P. 26(b)(1) (emphasis added).

[2]              Fed. R. Civ. P. 26(b)(1).

[3]           111 F. Supp. 2d 294 (S.D.N.Y. 2000) (citing United States v. Microsoft Corp., 84 F. Supp.2d 9 (D.D.C. 1999)).

[4]           For a discussion of such deficiencies, see Hon. Shira A. Scheindlin & Jeffrey Rabkin, Electronic Discovery in Federal Civil Litigation: Is Rule 34 Up to the Task?  41 B.C.L.REV. 327 (2000).

[5]           Fed. R. Civ. P. 34(a).

[6]           Crown Life Ins. Co. v. Craig, 995 F. 2d 1376, 1383 (7th Cir. 1993).

[7]           54 F.R.D. 220 (W.D. Va. 1972).

[8]           Kleiner v. Burns, 2000 WL 1909470 (D. Kan. Dec. 15, 2000).

[9]           Fed. R. Civ. P. 34(b).

[10]          See Bd. of Educ. of Evanston Township High School v. Admiral Heating & Ventilating, Inc., 104 F.R.D. 23 (N.D. Ill. 1984).

[11]          T.N. Taube Corp. v. Marine Midline Mortgage Corp., 136 F.R.D. 449, 452 (W.D. N.C. 1991).

[12]          Dunn v. Midwestern Indemnity, 88 F.R.D. 191, 198 (S.D. Ohio 1980).

[13]          Bills v. Kennecott Corp., 108 F.R.D. 459, 463-64 (D. Utah 1985).

[14]            Continental Illinois Nat’l Bank & Trust Co. v. Caton, 136 F.R.D. 682, 685 (D. Kan. 1991) (citing Jackson Jordan, Inc. v. Kyle Rys. Inc., No. 87-1059 (D.Kan. Mar. 22, 1988)).

[15]            Kozlowski v. Sears, Roebuck & Co., 73 F.R.D. 73 (D.Mass. 1976).

[16]          Delozier v. First Nat’l Bank of Gatlinburg, 109 F.R.D. 161 (E.D. Tenn. 1986).

[17]          Illinois Judicial Conference, Study Committee on Complex Litigation, Illinois Manual for Complex Litigation (Rev. ed. 1994).

[18]          In re Brand Name Prescription Drugs Anti-Trust Litigation, 1995 WL 360526 *1 (N.D. Ill. June 15, 1995) (citing Bills v. Kennecott Corp., 108 F.R.D. 459, 464 (D. Utah 1985)).

[19]          Id.

[20]          Id. at *2.

[21]          Daewoo Electronics Co. v. United States, 10 Ct. Int’l Trade 754, 650 F. Supp. 1003 (CIT 1986).

[22]          See, e.g., Fed. R. Civ. P. 26 & 34; see also Sanders v. Levy, 558 F.2d 636, 639 (2d Cir. 1976).

[23]          103 F.R.D. 357 (D.D.C. 1984).

[24]          101 F.R.D. 92 (S.D.W.Va. 1984).  Cf. Stapleton v. Kawasaki Heavy Industries, Ltd., 69 F.R.D. 489 (N.D. Ga. 1975); In re Puerto Rico Electric Power Authority, 687 F.2d 501 (1st Cir. 1982) (defendants were required to translate documents from a foreign language to English at defendant’s expense).

[25]          437 U.S. 340 (1978).

[26]            Compare Stapleton v. Kawasaki Heavy Industries, Ltd., 69 F.R.D. 489, 490 (N.D. Ga. 1975) (holding that “the cost of translating those documents [is] a reasonable cost of transacting business in this country”); with In re Puerto Rico Electric Power Authority, 687 F.2d 501, 507 (1st Cir. 1982) (holding that “if discovery requests threaten to impose ‘undue burden or expense’ upon a respondent, the district courts are specifically empowered to . . . [require] the requesting party to pay the expenses of production”).

[27]          See also Sanders v. Levy, 558 F.2d 636 n.7 (2d Cir. 1976).

[28]          138 F. 3d 1164 (7th Cir. 1998).

[29]          Id. at 1171.

[30]          1995 WL 649934 (S.D.N.Y. Nov. 3, 1995).

[31]          Id. at *3.

[32]          665 F.2d 918 (9th Cir. 1982).

[33]          Id. at 933.

[34]            Lawyers Title Ins. Corp. v. U.S. Fid. & Guar. Co., 122 F.R.D. 567, 570 (N.D. Cal. 1988).

[35]          494 F. Supp. 1257 (D.C. Pa. 1980).

[36]          1992 WL 406992 (CIT 1992).

[37]          See Bd. of Educ. of Evanston Township High School v. Admiral Heating & Ventilating, Inc., 104 F.R.D. 23 (N.D. Ill. 1984).

[38]          Id. at 36 (emphasis added).

[39]          136 F.R.D. 449 (W.D.N.C. 1991).

[40]          669 So. 2d 1142 (Fla. Dist. Ct. App. 1996).

[41]          Id. at 1145.

[42]          Fennell v. First Step Designs, Ltd., 83 F.3d 526 (1st Cir. 1996).

[43]          Id. at 532.

[44]          Id.

[45]          See, e.g., Aramony v. United Way of Am., 969 F. Supp. 226, 235 (S.D.N.Y. 1997); Lois Sportsware, U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103, 105-06 (S.D.N.Y. 1985).

[46]          See S.E.C. v. Cassano, 189 F.R.D. 83, 85 (S.D.N.Y. 1999).

[47]          60 F. Supp. 2d 1050 (S.D. Cal. 1999).

[48]          Id. at 1052.

[49]          Id. at 1053.

[50]          Id. at 1054.

[51]          121 F.R.D. 636 (W.D.N.Y. 1988).

[52]          See also Malone v. Ford Motor Co., 1992 WL 885097 (Va. Cir. Ct. Dec. 31, 1992) (discussing a situation where over 15,000 documents were produced at the plaintiff’s request); In re Chrysler Motors Corp. Overnight Evaluation Program Litig., 860 F.2d 844 (8th Cir. 1988) (noting that defendant’s data base was work product, but the privilege had been waived).

[53]          119 F.R.D. 648 (W.D. Ky. 1987).

[54]          Id. at 649.

[55]          No. 92-1795JP, 1997 WL 178844 (D. P.R. March 27, 1997), rev’d in part, vacated in part and remanded, 150 F.3d 88 (1st Cir. 1998).

[56]          Id. at *33.

[57]          See, e.g., Danis v. USN Communications, Inc., 2000 WL 1694325 (N.D. Ill. Oct. 23, 2000)(shareholder class action involved allegations regarding willful destruction of hard copy, electronically stored documents and data).

[58]          See, e.g., Bank of N.Y. v. Meridien BIAO Bank Tanzania, Ltd., 171 F.R.D. 135 (S.D.N.Y. 1997); Wardrip v. Hart, 934 F. Supp. 1282 (D. Kan. 1996).

 

(author’s bio)

Frank Gassler is a member of the firm of Fowler White Boggs Banker, P.A., where he serves as the supervising shareholder of the products liability practice group.  He is engaged in civil trial practice, primarily defending products liability, toxic tort, professional malpractice and commercial claims.  Mr. Gassler received his baccalaureate degree, with honors, from Villanova University in 1973 and his juris doctor from the Columbia University School of Law in 1976. He is licensed to practice in Florida and has been admitted to all Florida federal district courts, the Fifth and Eleventh Circuit Courts of Appeal, and the United States Supreme Court. In 1985 he received his Board Certification in Civil Trial Law from the State of Florida.  Mr. Gassler is vice chair of the Toxic Tort Committee and Environmental Law Section of the FDCC, and vice chair of the Products Liability Committee of the ABA Litigation Section.  He is also a member of DRI, the Florida Defense Lawyers Association and the Hillsborough County Bar Association.