Court Rejects Defendant’s Attempt to Avoid Production Because of a Software Licensing Issue

17 Dec 2014

In Pero v. Norfolk Southern Railway Co., No. 3:14-CV-16-PRL-CCS (E.D. Tenn. December 1, 2014), a railroad conductor alleged he suffered injury after trying to remove a fallen tree from a train track. Plaintiff’s eDiscovery requests requested that Defendant produce the video recording from a camera mounted on front of the train. Plaintiff alleged it needed the video recording to demonstrate the tree’s position on the train track, a fact critical to Plaintiff’s case.

Defendant objected to producing the video, claiming that the software licensing terms for the program needed to view the video prevented Defendant from producing it to Plaintiff. Instead, Defendant wanted Plaintiff to either view the recording at defense counsel’s office or purchase the license for the viewing software (at the cost of approximately $500.) Defendant sought a Protective Order to establish that it did not have to produce the recording until Plaintiff purchased the license and that the software and data should only be used for the case and returned upon the case’s conclusion.  Plaintiff objected.

The court considered FRCP 34(a)(1)(A) and FRCP 34(b)(2)(E)(ii), which state that a responding party must translate into and produce electronically stored information in a reasonably useable format. Additionally, the court considered that comments to the FRCP’s 2006 Amendments acknowledge that a responding party may need to, in some circumstances, provide a reasonable amount of technical support or other information regarding the software required to access data. The court also looked to Donahoo v. SCX Transportation Inc., 4:12-CV-104-JHM-HBB (E.D.Ky. July 10, 2014), where the court considered a similar fact pattern.  Agreeing with the court’s treatment in Donahoo and rejecting Defendant’s position, the court ordered Defendant to do one of the following:

  1. Defendant must provide Plaintiff with a laptop computer with the video and software installed (to be returned after the litigation); or
  2. Defendant must reimburse Plaintiff for the costs of purchasing the software within 30 days of Plaintiff’s purchase.

ILS – Plaintiff Electronic Discovery Experts