There Is Nothing Like The Real Thing: Copied And Pasted Data Insufficient Under Rule 34, Court Rules
When you're expecting a swell gift-and when only a name brand will do-it is hard to fake a smile of gratitude when you tear off the wrapping paper to reveal your brand new R-Manny suit. You look at it in dim light and without your glasses. You try to convince yourself it's just as good. But as you stand there, trying to imagine convenient applications of a jacket with one sleeve that is four inches longer than the other, you know there is nothing doing.
A litigant seeking data in this discovery story probably felt the same way. And so did the court. One hundred pages of printed material, consisting of an email document containing copied and pasted materials excerpted from blog and website postings is not in the form "in which it is ordinarily maintained" and therefore insufficient under Federal Rule of Civil Procedure 34, the federal judge in the case ruled.
In German v. Micro Electronics, Inc., 2013 U.S. Dist. LEXIS 4594 (S.D. Ohio Jan. 11, 2013), an employment case, the United States District Court for the Southern District of Ohio rejected the plaintiff's argument that financial and physical hardship justified the manner of production. The case focused largely on the appropriate manner of production for online content, including the plaintiff's calendars and online activity, such as blogging. The plaintiff had argued that she could not afford to make copies and that carpal tunnel syndrome rendered her unable to use her hands on a laptop or Apple® iPad®.
The plaintiff produced electronic material copied from blogs and websites, which was then pasted into a lengthy email and printed by her attorney. However, the defendants maintained that the production was deficient because "it was not guaranteed to capture the original and complete text, formatting, and images of a blog or website." The defendants preferred production as PDF copies or a format that was similarly "reviewable and captures the documents in their original format." The court, in addition, noted that the production did not accurately identify the source of the text.
The court rejected the plaintiff's argument that production of screen shots was unduly burdensome and not mandated by Rule 34 because the materials were "ordinarily maintained" on external servers within multi-tiered Web pages, rendering the creating of PDFs time- and cost-intensive.
The court dismissed her claim that her production complied with Rule 34(b)(2)(E)(ii) as "disingenuous," saying it was "beyond dispute" that the one-hundred-page printed email with copied and pasted excerpts is not in the form "in which it is ordinarily maintained." The Rule mandates that "[I]f a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms." The Court was also troubled by the fact that the production format stripped "the entries of their original and complete text, formatting, images, and likely the source."
1. While the court exhibited some flexibility about the form of production, including a potential acceptance of PDF format or screenshots, the case shows that a blanket claim of "hardship" will not render acceptable a production format that clearly does not comport with Rule 34.
2. This case highlights the significance of the "meet and confer" requirement of FRCP Rule 26. The fact that defense counsel was willing to consider screen shots and PDFs as a compromise indicates that compromise was possible, but plaintiff was not willing to come far enough to resolve the dispute.
3. The case also points out the increasingly complicated issues that arise in connection with the production of electronically stored information (ESI). Particularly regarding online content, the methodologies for collection and preservation of ESI mandate that attorneys hire outside experts to help manage the discovery process, avoiding the expense of defending a motion to compel, or worse, sanctions for failure to comply.