Court Rules that Failing to Review Documents for Responsiveness Violates FRCP
Qui tam lawsuit Proctor v. Safeway, Inc. will soon be underway once more. This after the defendant dragged its feet producing requested documents for over a year. However, those documents proved problematic, drawing a motion from the plaintiff and rebuke from the court.
Proctor alleged that the defendant was fraudulently driving up the prices to increase profits earned from government health programs. As such, the plaintiff requested electronically stored information including emails and pharmacy transaction data (PDX). Over a year later, the defendant produced 260,640 Bates-numbered documents and an estimated 575,000 unnumbered native-format documents. No PDX data was produced.
The plaintiff accepted the Bates-numbered documents without objections but moved to compel Safeway’s action on three issues. The plaintiff wanted the defendant to review the native-format documents for responsiveness, production of responsive documents in TIFF or PDF formats, and the production of PDX data.
Citing overly burdensome and costly conversion fees, Safeway argued that it should not be required to produce such documents. After analyzing the situation, the court ruled that the defendant did not need to produce documents in the TIFF and PDF formats asked for by the plaintiff. However, the did rule that under the Federal Rule of Civil Procedure 34(a), the defendant “must produce responsive unprivileged documents within its custody and control that are relevant for the purposes of discovery.” The court also found that Federal Rule of Civil Procedure 26(g)(1) requires that a party must certify the responsiveness and completeness of discovery.
This means that Safeway must review its production for responsiveness and provide those documents in a file format the plaintiff can use. The court gave Safeway two weeks to review, Bates number and produce all responsive files. It also gave Safeway on week to produce PDX data.