To Scan or Not To Scan That is the Question

To Scan or Not To Scan That is the Question

Elizarri v. Sheriff of Cook County, No. 07 C 2427, 2013 U.S. Dist LEXIS 20570 (N.D. Ill. Feb. 13, 2013)


Plaintiffs had sought “original intake receipts” and “any documents related to the processing of personal property and money belonging to individuals incarcerated in the Cook County Jail” for an approximate five year period.  Defendants scanned over 400,000 property receipts from the jail.  Plaintiffs sought production of the electronic versions of the property receipts.


The magistrate judge held that the defendants were not required to produce the scanned version of the property receipts, and had met their discovery obligations by permitting plaintiffs to inspect and copy the receipts.  The judge held that plaintiffs should not get the benefit of the electronic imaging when the defendants had incurred the expense of conversion, and further held that plaintiffs had received the receipts in the original paper format.


The district court reversed, holding that plaintiffs were entitled to the digital versions of the receipts.  The court first noted that defendants had not offered plaintiffs access to the original receipts, but the scanned versions.  Therefore, since the original documents were not being produced, defendants were obligated to produce them in a reasonably useful form.  As the scanned documents were presumably the form of the receipts which defendants would be using during the litigation, it was the electronic format which had to be produced, not a less manageable format.


Defendants basically did not want to turn the digital versions of the receipts over to the plaintiffs because they had incurred considerable expense in scanning them.  That was not a basis for denying plaintiffs’ request.  Defendants had not argued that the information was not reasonably accessible because of undue burden or cost.  Even materials prepared in anticipation of litigation must be produced if they are otherwise discoverable, and the party cannot obtain their equivalent without undue hardship.  Scanning documents does not result in a privileged work product.  Forcing the plaintiffs to copy the scanned documents, and then scan them again, would result in undue hardship to the plaintiffs.

If You Want to Avoid Sanctions, Hire an E-discovery Consultant!

If You Want to Avoid Sanctions, Hire an E-discovery Consultant!

Brown v. FPI Mgmt, No. 4:11-cv-5414 YGR (KAW), 2013 U.S. Dist. LEXIS 1040 (N.D. Cal. Jan. 3, 2013)

The Federal Rules of Civil Procedure were updated almost a decade ago to include rules regarding the production of ESI, but the case law involving the discovery of ESI is still maturing. Many litigants producing documents in litigation are still trying the old “my system isn’t good enough to find the documents” defense.  However the Courts are starting to become wary of such defenses and in the above captioned matter, defendant producer’s argument that producing requested documents was unduly burdensome was rejected:

Defendant argued that it would be difficult to find responsive documents because 1) the terms “Community Director” and “Portfolio Manager” are commonly used in email signatures, 2) the term “promotion” is commonly used throughout emails, and 3) FPI’s email system is not capable of conducting advanced searches. But the Court rejected the argument because Defendant could have used other search terms, or simply sort through the emails, to find the responsive documents. By interviewing its employees or by consulting its own records, Defendant ought to be able to narrow its searches by the persons involved and the approximate dates. Although Defendant may not know how to efficiently conduct a search of its email system, that does not relieve it of its discovery obligations. It may need to utilize the assistance of IT personnel or obtain a consultant to help conduct the search.

Defendant did not provide the Court with an estimate of the cost or the amount of time needed for discovery, nor did it provide a declaration of an e-discovery expert to substantiate its assertion that the documents were not reasonably accessible. Accordingly, the Court held that Defendant did not make a good-faith effort to produce  responsive documents.

The court acknowledged that defendants might still find that the documents were not reasonably accessible.  But if that were the case, the court could still order sampling of the emails at issue, or it could permit plaintiffs to conduct discovery on the costs and burdens of providing the emails, or plaintiffs might have to share some of the costs.

Retrieving 500 DVD’s of Archived Data with the Use of a Robotic Arm is NOT Unduly Burdensome

Retrieving 500 DVD’s of Archived Data with the Use of a Robotic Arm is NOT Unduly Burdensome

Starbucks Corp. v. ADT Security Services, Inc., 2009 U.S. Dist. LEXIS 120941 (W.D. Wash. Apr. 30, 2009)

The controversy involved ESI stored on a Plasmon archiving system which producer argued was so cumbersome that the data contained within it was not reasonably accessible because of undue burden or cost under Rule 26(b)(2)(B). The system was described as similar to an optical jukebox, containing 500 double-sided DVDs accessed by a robotic arm. The limitations of the system caused producer to replace the Plasmon system with a new system, but data on the Plasmon system had not been migrated.

Producer’s expert testified that production of the requested emails could potentially involve the access of all of the 500 DVDs in the system. Only one custodian’s email could be recovered at a time, preventing access by producer’s employees of archived emails while the searches were in progress. Attempts to access more than one user’s emails at a time caused the system to freeze, requiring a cumbersome reboot. As only 8 emails per hour could be restored, the total restoration of 25,000 emails (assuming 11 hours per day) would take 284 days. Restoration for 5 custodians could therefore take up to 5 years. Outside vendors could not perform the restoration as many of the DVDs could be only be read by proprietary equipment owned by producer, and producer would be without access to the information during the restoration process. The expert estimated the cost of retrieval at about $834,000, significantly higher than producer’s original $88,000 estimate.

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E-discovery of Sound Files, I Don’t Like the Sound of That.

11 November, 2012 Miscellaneous
E-discovery of Sound Files, I Don’t Like the Sound of That.

Borwick v. T-Mobile West Corp., Civil No. 11-cv-01683-LTB-MEH, 2012 U.S. Dist. LEXIS 128968 (D. Colo. Sept. 11, 2012)


Plaintiff, a telephone customer service representative, contended that she was discriminated and fired due to her pregnancy. Defendant alleged that Plaintiff was terminated because she would inappropriately hang up on customers during service calls.  Defendant had originally recorded calls using “i360” software, but transferred the calls to .wav files, and destroyed the original files pursuant to its document destruction policy after one year.  The lawsuit was pending during that period.


Plaintiff’s discovery request was for “copies of all recordings,” but she did not request the calls in native format.  When she subsequently determined that the calls were originally made using the i360 software, the originals had already been discarded.


Plaintiff contended that the original recordings were important “because there are discrepancies in the documentation of the phone calls which demonstrate unexplained time “gaps” that could prove the Plaintiff did not intentionally hang up on customers.”  In addition, because the .wav files could be easily altered, plaintiff implied that defendant had altered the files to benefit its case.


Defendant raised plaintiff’s failure to confer pursuant to local rules, thereby raising the issue in an untimely manner, as well as failure to request the files in native format, and lack of prior objection to the .wav format. Defendant also contended that the .wav files were exact copies of the original i360 files.


The court found for defendant, finding that there was no evidence of alteration of the .wav files, and that plaintiff had failed to ask for native files.  The court further found that the destruction of the i360 files was pursuant to defendant’s document destruction policy, and found that the destruction fit within the Rule 37(e) “safe harbor”, or destruction due to a “routine, good-faith operation of an electronic information system.”  Although best practices would have been to preserve the original files, failure to do so was not sanctionable.

A Pirate’s Right to Privacy: Don’t Download Copyrighted Information!

A Pirate’s Right to Privacy: Don’t Download Copyrighted Information!

Plaintiff justifies early discovery of identities of allegedly illegal downloaders of movie


Braun v. Primary Distributor Doe No. 1 and Defendant Does 2 through 69, No.: 12-cv-3690 YGR (JSC), 2012U.S.Dist. LEXIS 118396 (N.D.Cal.Aug. 21, 2012)


Plaintiff alleged that defendants used the BitTorrent peer-to-peer file sharing network to illegally download a video produced and copyrighted by plaintiff.  BitTorrent works as follows:


in a process called “seeding” an initial file-provider shares a file with P2P networks. Other users (“peers”) on the network connect to the seed file to download. Each new file downloader receives a different piece of data from each user who has already downloaded the file that together comprises the whole. This piecemeal system with multiple pieces of data coming from different peer members is called a “swarm.” As new peers request the same file, each new peer becomes a part of the network and the peers offer parts of the file stored on their computers to other peers. This means that every “node” or peer who has a copy of the infringing copyrighted material also becomes a source of download for that infringing file.


(Dkt. No. 4-1 ¶ 8.)  Through an intermediary, plaintiff was able to identify the IP addresses of the users accessing the video, as well as the dates and times the files were shared (roughly a 36 hour period).   Plaintiff sought expedited discovery in order to subpoena the relevant internet service providers (ISPs) in order to disclose the name, address, telephone number and email address for each IP address.


The court was satisfied that plaintiff had identified each defendant with sufficient specificity such that it could conclude that each defendant was subject to the court’s jurisdiction.  The IP addresses accurately reflected those addresses used to copy the video, and through geolocation technology, plaintiff had determined that the IP addresses were located inCalifornia.  Since defendants had accessed the video without any other identifying information other than their IP addresses, plaintiff could not further identify them without the information from the ISPs.


Plaintiff also made a prima facie showing that the complaint could withstand a motion to dismiss, demonstrating that it owned a valid copyright, and that each defendant had intentionally copied the covered work.  The evidence uncovered through geolocation technology would also be sufficient to support an inference that all defendants resided inCalifornia, which was sufficient to support the expedited discovery request.  Proper joinder of the defendants was also sufficiently demonstrated by plaintiff’s showing that all defendants were part of the same swarm, downloading the video over the 36 hour period; and thus were part of the same transaction, raising common issues of law and fact.


The court acknowledged that the actual identities of the downloaders might not be revealed by the information sought from the ISPs, as the internet connection “could have been used by the subscriber, by another member of the household, by a visitor to the household, or by someone secretly using an unsecure connection.”  However, plaintiff proposed that the subscribers be given a thirty day period to respond to and potentially contest the subpoena.  Plaintiff would be given the information only after the thirty days had passed without a successful challenge.


The court granted plaintiff’s motion, finding:  “In these circumstances, where Plaintiff has a good faith belief that the Doe Defendants reside in California, has submitted declarations outlining the steps it has taken to ensure that the identified Doe Defendants in fact downloaded Plaintiff’s copyrighted material, and has limited its case to a narrow period of time, the Court concludes that good cause has been shown.”