By William A. Ruskin
Connecticut state courts have not provided a rule to address electronic discovery that would give guidance to litigants in a manner similar to the federal rules. In a significant decision, issued on November 18, 2011, the Hon. Barbara Brazzel-Massaro, who sits in Complex Litigation in Stamford Superior Court, ruled in Innis Arden Golf Club, Inc. v. O'Brien & Gere Engineers Inc., et al., that federal rules concerning electronic discovery may provide guidance that may be useful to Connecticut courts.
In this case, the defendant filed a motion to compel arguing that the electronic production of over 60,000 documents by the plaintiff did not provide an orderly or readable response. In particular, the defendant requested that the court order the plaintiff to re-produce the documents with accurate document separation, proper load files and pertinent metadata.
In granting the motion, the court held in pertinent part:
It is clear that the plaintiff produced the documents in mass without any designation as to which documents were responsive to which product request. The documents were not organized or indexed in a manner that would be sequential based upon the content but were simply given to the defendant to sort out. Even without considering the electronic difficulties, this manner of discovery is not sufficient. This type of discovery does not further the intent of discovery but only creates a stumbling block for the opposing party who has all of these documents and no where to go. The federal rules require that the documents are organized or labeled to correspond to the categories in the request. It is obvious that this was not done and has left the defendants with a mass of documents without a particular connection to the production requests.
The court ruled further that the plaintiff should produce electronic discovery in a load file with pertnent metadata, but with defendant bearing the $550 cost of creating the load file. Perhaps most importantly for litigants who may be involved in future electronic discovery disputes in Connecticut, the court held that "the metadata is an important source for the defendants as part of the orderly production of the electronic discovery." In so ruling, the court has created an expectation that ESI should be produced with metadata, which contains valuable information, and load files, which can expedite the organization on software of large productions.
For more cutting edge commentary on developing issues, visit Toxic Tort Litigation Blog by William A. Ruskin of Epstein Becker & Green.
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