In Kwan Software Engineering, Inc. v. Foray Technologies, LLC, No. C 12-03762 (N.D.Cal. October 1, 2013), plaintiff electronic discovery requests were sent and defendant responded by producing 28,786 documents on the discovery due date of August 20. After the deadline, defendants then produced 100,692 documents three weeks later, then 99,778 more a month after. All the documents in the defense production was described as “non-searchable TIFFs without any associated metadata.”
Alleging that this defense production was untimely, plaintiff sought terminating sanctions. In the alternative, plaintiff requested that (1) all responsive documents be produced within 3 days in searchable electronic format with metadata, (2) plaintiff’s discovery cut-off dates be extended; (3) Defendant be precluded from using an y documents produced after the original cut-off date of August 20; and (4) Defendant pay monetary sanctions for the cost of this motion.
The court declined to enter a terminating sanction upon defendant, but found the late disclosure to warrant lesser sanctions. Plaintiff argued it was prejudiced due to the untimely, unsearchable defense production, and the court ordered the defendants produce the electronic data in searchable format with metadata (and gave them deadlines to do so.) [A footnote in the case opinion notes that the original Joint Case Management Statement called for ESI to be in searchable form with metadata.] The court also extended the discovery deadlines for both parties.