Native Format Productions: Getting to the Metadata

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Article by Mark A. Berman appearing on law.com on the LTN website.

This article discusses production of information that is still in an electronic format. The article discusses a recent New York State case, where production of electronically stored information was an issue, "
Practitioners should look to the decision in 150 Nassau Associates LLC v. RC Dolner LLC[FOOTNOTE 3] for guidance as to the form of production and issues that may be encountered when not initially demanding that particular information be produced in electronic form."

The court denied the plaintiff's motion to compel native data in this case. "Claims by [plaintiff], that [defendant] maybe has something to "hide," are little more than bald accusations and not a reason to order [defendant] to provide in raw, electronic or "native" form the data it has already provided in PDF documents or hard copies just so [plaintiff] can more easily reconcile these amounts."

The article then goes on to outline additional examples where the format of evidence to be produced was in dispute. As the author states, "Sanctions may be awarded against parties who fail to comply with requests for the production of documents in native form." The article then discusses a case where sanctions were imposed. "Kowalski v. Ritterband[FOOTNOTE 9] was a medical malpractice action where plaintiffs sought electronic data from defendants' Pentacam machine used to capture measurements stored in a three-dimensional electronic format of a patient's eyes."

The court in the Kowalski matter did sanction the defendant for failing to produce the data in timely fashion, in a format that was similar to how the data was originally kept. "Defendants ultimately provided the data, but plaintiff sought sanctions for defendants' repeated failure to comply with court orders, which cost plaintiffs over $10,000 and forced them to prematurely disclose the name of their expert.

The court declined to strike defendants' answer, but imposed a monetary sanction, pursuant to CPLR Rule 3216, noting that "the delay tactics that defendants utilized regarding the electronic data at issue are indefensible.""

Source : http://srmlegal.blogspot.com/