Defendant Must Provide Electronic Documents in Reasonable Form
In Home Instead, Inc. v. Florance, No. 8:12CV264 (Dist. Court, D. Nebraska Nov. 8, 2013), plaintiff Home Away alleged defendant Florance violated a non-compete agreement, took trade secrets and used licensed marks of Home Away without permission. Florance operated a franchise under Home Away for fifteen years. During depositions, Florance testified to discarding evidence that might be responsive to plaintiff eDiscovery requests at an earlier date and that some evidence is unavailable. Florance also performed a limited search for responsive information and produced one PDF file with no metadata and no separation of documents.
The court found the parties had a Rule 26(f) Report, which stated:
Documents maintained in electronic form in a party’s ordinary course of business will be produced in electronic form. Where reasonably feasible, such documents shall be produced as searchable TIFF images with load files (that indicate the beginning and ending of each document and preserve the parent-child relationship) to allow the images to be loaded into a document production database.
The court also noted that under Fed. R Civ. P. 34(b)(2)(e):
i. A party must produce documents as they are normally kept in business or must organize and label documents as requested;
ii. If there is no specific form requested for electronic documents, a party must produce the documents in the ordinarily maintained or a reasonably useable form.
According to the deposition testimony, Florence did not produce electronic files in an ordinary or reasonably useable form, nor did Florance organize or label electronic documents, contravening both Rule 34 and the Rule 26(f) Report. Florance only performed one search on the name “Home Away” when looking for relevant documents, which the court deemed insufficient.
The behavior of Florance seems highly suspect to the court, so granting the plaintiff motion to compel production and requesting a written affidavit explaining why defendant Florence cannot produce relevant evidence is reasonable. Indications from the court lead to a possible future spoliation charge against defendant Florance.
Courts support plaintiffs with a difficult discovery process, especially when parties agree to specific discovery parameters. If plaintiffs and defendants have an electronic information agreement and defendants do not provide the promised information, courts will hold them accountable.