Electronic Discovery — Form of Production — Sanctions

As amended effective December 1, 2006, Fed.R.Civ.P. 26(f) requires that, at the initial discovery conference, the parties discuss ‛any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced.“ Williams vs. Sprint/United Mgmt. Co., 2007 U.S. Dist. LEXIS 5477 (D. Kan. Jan. 23, 2007), shows how important that discussion can be in avoiding sanctions. (Note: This is the Magistrate Judge’s decision on remand from the District Court. There may be another chapter to this story.) The primary issue is whether the defendant should be sanctioned for failing to produce certain documents in their native format, as required by the District Judge, but instead producing them in TIF format (presumably non-searchable TIFs). The Magistrate Judge reasons that sanctions are inappropriate because at the beginning of the case, the parties voluntarily reached an agreement that defendant would produce responsive documents in TIF format only, and the defendant established its internal database and production protocol on that basis. Later, plaintiffs changed their minds and requested that certain materials be produced in native format, and the District Judge subsequently required an even larger native format production. The Magistrate Judge holds that the defendant, in the circumstances, acted responsibly in using its best efforts to make the latest production deadlines in the shifting formats.

The second major issue in the case is whether the defendant sanctionably deluged the plaintiff with duplicates, re-producing more than 200,000 pages of materials in non-native format that had already been produced in native format. The total production by the defendant was only 381,706 pages, meaning that most of the production (over 52%) consisted of duplicates. The Magistrate Judge holds that there is no evidence that this was done intentionally, negligently, or in bad faith. Most quotable: ‛a certain amount of duplication is inevitable in a large document-intensive case such as this one.“ Under this decision, that amount may exceed the number of responsive documents.

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