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Court Imposes Tight Deadline for Defendant Safeway To Produce Responsive Unprivileged Documents

Posted on March 30th, 2018

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In U.S. Ex Rel. Proctor v. Safeway, Inc., No. 11-cv-3406 (C.D. Ill. March 3, 2018), Relator Thomas Proctor (“Proctor”) served his First Set of Requests for Production of Documents on Defendant Safeway, Inc. (“Safeway”) seeking various electronic data, including Safeway’s PDX pharmacy transaction data (“PDX Data”) and emails and other electronically stored documents.

Safeway produced 260,640 Bates numbered documents (although not the PDX data).  Safeway also produced approximately 575,000 documents in Native Format (“Native Files”), which it collected and produced by running a keyword search but not otherwise reviewing the Native Files to determine if the documents were actually responsive to Proctor’s Request.  Proctor alleges that some of the files produced were a mass of incomprehensible special characters and other symbols. 

Proctor asked the Court for the following relief:  1) order Safeway to review the Native Files (and any other subsequently produced documents) to identify the non-privileged responsive documents; 2) order Safeway to produce the responsive documents from the Native Files in Bates numbered Tagged Image File Format (TIFF) or Adobe Portable Document (PDF) format; and 3) order Safeway to produce the PDX Data immediately.

Safeway responded that Proctor’s request was overly burdensome, cost prohibitive, and could not be accomplished within the timeframe of the discovery schedule.  The court disagreed, ordering that Safeway must produce responsive unprivileged documents within its custody and control that are relevant for purposes of discovery. With respect to ESI, Safeway must produce documents as they are kept in the usual course of business or must organize and label the documents to correspond to the categories in the request. Safeway must produce the documents in the form in which the documents are ordinarily maintained or in a reasonably usable form.  Safeway must also produce the PDX Data.

Safeway responded that it could produce these documents by March 28, 2018. Proctor objects, stating that Safeway has had more than a year to respond to this request. The Court orders Safeway to produce the PDX Data by Friday, March 16, 2018. The Court denies Safeway’s request for an order imposing its document production costs on Proctor. 

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