eDiscovery Daily Blog
In Search of Cases Where Production of Databases Has Been Ordered: eDiscovery Case Law
Shark Week on the Discovery Channel continues, which means Case Week on the eDiscovery Channel (a.k.a., eDiscovery Daily) continues as well. Despite a few technical difficulties early on, Tom O’Connor and I had another great webcast yesterday on Key eDiscovery Case Law Review for the First Half of 2019 (which, if you missed it, can be viewed here). During the webcast, one attendee asked about case law examples where parties have been ordered to produce (or provide access to) databases in response to discovery requests, so I’ve done some research and have the results here.
In his question yesterday, he provided an example of a party having to provide an actuarial database, but was looking for case law where parties have had to produce any kind of database in discovery.
With over 693 lifetime posts covering over 550 cases lifetime in eDiscovery Daily, I started with a search of cases there to see what I could find. Here are three cases where parties were required to produce databases, or provide access to those databases or provide metadata from database systems:
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.
Thorne Research, Inc. et. al. v. Atlantic Pro-Nutrients, Inc., No. 13-784 (D. Utah, Mar. 22, 2016): Utah Magistrate Judge Paul M. Warner determined that, because the parties had competing affidavits regarding whether a Microsoft Access database created by the plaintiffs’ co-inventor stores metadata and that metadata (if present) was clearly relevant, the defendant should be allowed the opportunity to conduct a forensic analysis as to whether or not the metadata exists in the native format of the Access database.
Miller v. Sauberman, Index No. 805270/16 (N.Y. Dec. 6, 2018): New York Supreme Court Justice Joan A. Madden, despite the defendant’s estimated cost of $250,000 to produce metadata related to the plaintiff’s medical records, denied the defendant’s motion for a protective order and granted the plaintiff’s cross-motion to compel the production of that metadata within 30 days of the decision and order.
Another part of the discussion related to production of source code, so here are a couple of cases where source code production was compelled (including one just last week):
ACI Worldwide Corp. v. MasterCard Technologies, LLC et. al., No. 14-31 (D. Nebraska, Oct. 27, 2016): Nebraska Magistrate Judge F.A. Gossett granted the plaintiff’s Motion to Compel Production of the defendant’s Full Source Code in part, “to the extent there are any files that MasterCard has not produced responsive to the parties’ previously established joint Search Protocol.”
Opternative, Inc. v. Jand, Inc., 17-CV-6936 (RA)(SN) (S.D.N.Y. July 12, 2019): New York Magistrate Judge Sarah Netburn granted in part and denied in part the defendant’s motion to compel the plaintiff to produce printouts of two files of source code, a printout of a log file, and a listing of directories and files. Judge Netburn ordered the plaintiff to produce the source code and log file printouts requested, but not the file directory listing, choosing to reserve judgment on that for the time being.
However, I was unable to find a case where an (actual) actuarial database was required to be produced. So, I decided to do a search in eDiscovery Assistant, which is the site we’ve been using for most of our case opinions over the past couple of years. In a search for “actuarial”, I found a number of cases and finally found this case, all the way back from 2007:
Goshawk Dedicated Ltd. v. Am. Viatical Servs., LLC, No. 1:05-CV-2343-RWS (N.D. Ga. 2007): Georgia Richard W. Story granted the plaintiff’s Motion to Compel Production of Sequel Database, ordering the defendant to “produce, within eleven (11) days of the entry of this Order, a complete copy of the Sequel Database and a copy of any historical backup copies of the Sequel Database between 1998-2003”.
Yes, that was a request to produce their “sequel” database. I had to laugh at that one. :o)
So, what do you think? Are you aware of any other cases where parties were required to produce (or provide access to) databases? Please let us know if any comments you might have or if you’d like to know more about a particular topic.
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