On Monday, our blog reviewed a federal district court case Branhaven, LLC v. Beeftek, Inc., et al., Civ. No. WDQ-2334 (D. Md. 2013). In the case, after five months, plaintiff produced electronic data that consisted of 112,106 documents three days before oral depositions were scheduled. Although plaintiff offered some excuses for the delay, mainly that it first attempted to collect and cull the ESI production in-house, only to later realize it needed the assistance of an eDiscovery vendor. The Court didn’t buy the excuses and found as follows:
- A five month delay to procure an outside vendor assist with discovery production is unacceptable;
- The fact that the litigant whose discovery was incomplete was the plaintiff makes the behavior even worse, as the plaintiff was the one who filed the lawsuit and should have expected the discovery demands and costs; and
- The plaintiff misled defendants with the evasive answers in the initial response.
The Court also offered important insight regarding email threads in electronic discovery: “There is no more obvious and critical source of information in the 21st century than a company’s email accounts.” Id. at 10. (The importance of email chains in electronic discovery cannot be understated; our blog often discusses how email can be the “smoking gun” in modern civil litigation.)
The format of the data was also at issue. The defendants had produced the data in .tiff format, but that was what plaintiff requested. However, the defendants did not want the documents in .tiff format, but that is what plaintiff produced. The Court noted that Fed. R. Civ. P. 34(b)(2)(E)(ii) offers two options for formatting a data production: either a form “in which it is ordinarily maintained,” or in “reasonably usable form.” Further, best practice involves informing the other party of the intended form so that objections and compromises can be made prior to production. Since this was never done, the court concluded the plaintiff ESI production was insufficient under Rule 34.
The Court ordered reasonable attorney fees to the defendant, but fortunately declined to order a harsher sanction of excluding the plaintiff’s document production for use as evidence.