eDiscovery Daily Blog

Plaintiff Granted Access to Defendant’s Database – eDiscovery Case Law

Last week in the EDRM Annual Meeting, one of our group discussion sessions was centered on production and presentation of native files – a topic which has led to the creation of a new EDRM project to address standards for working with native files in these areas.  This case provides an example of a unique form of native production.

In Advanced Tactical Ordnance Systems, LLC v. Real Action Paintball, Inc., No. 1:12-CV-296 (N.D. Ind. Feb. 25, 2013), Indiana Magistrate Judge Roger B. Cosbey took the unusual step of allowing the plaintiff direct access to a defendant company’s database under Federal Rule of Civil Procedure 34 because the plaintiff made a specific showing that the information in the database was highly relevant to the plaintiff’s claims, the benefit of producing it substantially outweighed the burden of producing it, and there was no prejudice to the defendant.

In this case involving numerous claims, including trademark infringement and fraud, Advanced Tactical Ordnance Systems LLC (“ATO”) sought expedited discovery after it obtained a temporary restraining order against the defendants. One of its document requests sought the production of defendant Real Action Paintball’s OS Commerce database to search for responsive evidence. Real Action objected, claiming that the request asked for confidential and sensitive information from its “most important asset” that would give the plaintiff a competitive advantage and that the request amounted to “‘an obvious fishing expedition.”

To decide the issue, Judge Cosbey looked to Federal Rule of Civil Procedure 34(a)(1)(A), which allows parties to ask to “inspect, copy, test, or sample . . . any designated documents or electronically stored information . . . stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.” The advisory committee notes to this rule explain that the testing and sampling does not “create a routine right of direct access to a party’s electronic information system, although such access might be justified in some circumstances.” Judge Cosbey also considered whether the discovery request was proportionate under Federal Rule of Civil Procedure 26(b)(2)(C)(iii), comparing the “burden or expense” of the request against its “likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.”

Based on its analysis, Judge Cosbey permitted ATO’s request. The benefits of allowing the plaintiff to access the defendant’s OS Commerce database outweighed the burden of producing data from it, especially because the parties had entered a protective order. The information was particularly important to the plaintiff’s argument that the defendant was using hidden metatags referencing ATO’s product to improve its results in search engines, thereby stealing the plaintiff’s customers.

Despite the defendant company’s claims that the information the database contained was proprietary and potentially harmful to the business’s competitive advantage, the court found the company failed to establish how the information in the database constituted a trade secret or how its disclosure could harm the company, especially where much of the information had already been produced or was readily available on the company’s website. Moreover, the company could limit the accessibility of the database to “‘Attorneys’ Eyes Only.’”

So, what do you think?  Was it appropriate to grant the plaintiff direct access to the defendant’s database?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery blog here.

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