October 2007
District Court Denies Electronically Stored Information To Party Who Doesn't Ask For It
By C. Dewayne Lonas
One of the first decisions under the revised Federal Rules of Civil Procedure regarding electronic discovery – revolutionary as they may be – shows that one age-old discovery precept has not changed: you don’t get what you don’t ask for.
The case, styled Scotts Co. v. Liberty Mutual Ins. Co., Civil Action No. 2-06-CV-899 (S.D. Ohio June 12, 2007), centered around alleged misrepresentations made by the defendant insurer in settling a dispute about the insurer’s obligation to indemnify the plaintiff for certain environmental claims. In discovery, the plaintiff served requests for documents, but did not specify the format in which it wished to receive responses. The insurer produced approximately 6,400 documents in paper form that it retrieved from electronic sources.
The plaintiff cried foul. It first argued that the electronic discovery amendments to Rule 34 allowed it, upon demand, to gain access to the insurer’s computer systems, network servers and databases to glean for itself responsive electronically stored information (ESI). Second, the plaintiff argued that the revised Rule 34 mandated that the insurer produce all discovery in its native electronic format, thereby necessitating the re-production of the 6,400 previously produced documents.
The District Court found neither argument convincing. As a threshold matter, the Court held that the revised rules did not elevate the discovery of ESI over other forms of discovery, but simply placed the “discovery of electronically stored information on equal footing with discovery of paper documents.” Thus, without a compelling reason, the plaintiff was “no more entitled to access to defendant’s electronic information storage systems than to defendant’s warehouses storing paper documents.” Such invasive discovery measures, the Court stated, require a showing that certain responsive materials existed and were being withheld by the answering party. Although the plaintiff made some vague allegations of discovery misconduct, it could not point to any specific instances of malfeasance by the insurer.
The District Court also held that the insurer had no obligation to re-produce paper documents as ESI because the plaintiff was bound to its original non-specific discovery requests. Contrary to the plaintiff’s assertion, the Court found that revised Rule 34 does not make the production of computerized information in its native format mandatory. A party must still ask for ESI. If the responding party fails to produce it in the requested format, the responding party runs the risk that the requesting party will be able to show that the information is “not reasonably usable” and that it is entitled to production in the requested format. The District Court further found that the parties had failed to discharge their meet-and-confer obligation regarding the production of ESI – an obligation not overridden by any amendments to Rule 34.
The Southern District of Ohio’s decision illustrates the importance of a carefully crafted request for ESI at the outset of discovery. It further highlights the need to have in mind the type of data to be mined from ESI for which paper documents are not a reasonable substitute.
The lawyers at Moran Reeves & Conn PC have developed expertise in the drafting of requests for ESI and are adept at articulating the need for such information as a preferred form of discovery. We have also been at the forefront in crafting ESI maintenance and production protocols for numerous large companies both in the U.S. and around the world. Please call the author of this article, C. Dewayne Lonas, or any of the firm’s other lawyers, for further information.