FDIC Proposes Unique Plaintiff ESI Protocol to Expedite Large Document Production
Federal Deposit Insurance Corporation v. Brudnicki, Case No. 5:12-cv-00398-RS-GRJ (N.D.Fl. 2013) is a case regarding the FDIC, as receiver for the now-defunct People’s First Community Bank, suing defendants, People’s former directors. Several electronic discovery disputes were pending before the district court in this case, including one regarding the proposed plaintiff ESI Protocol Order.
The defendants filed 94 separate document requests, and the “lion’s share of documentary information in this case has been converted to ESI.” Plaintiff proposed a unique ESI Protocol Order; it agreed to produce the requested ESI in two phases. The first phase would be the plaintiff ESI production of over 61,000 documents regarding categories of highly relevant requested data. The second phase would be regarding voluminous ESI that plaintiff claims to be only marginally relevant. The FDIC stores its ESI in a data management system (called the “DMS database” in the opinion), and it offered for the parties to agree to search terms to cull the data. It would then upload the resulting data into a separate database called “Relativity.” The defendants could then go on the Relativity database and review, search or annotate any document they want (subject to privilege review and clawback order.) However, plaintiffs also proposed that they charge the defendants $.06 per page to covert the data to TIFF form, and $225 per gigabyte of data uploaded to the Relativity database.
Defendant objected to this proposal, calling it improper cost shifting. Citing Zubulake, defendants claim cost-shifting of ESI production is only proper for “inaccessible data.” The court disagreed that this was “cost-shifting,” and noted that even if it was, the proposed protocol was proper. Firstly, the court noted that the first phase of discovery, which likely contains most, if not all of the relevant data, is being provided for free. Secondly, the court found the 94 document requests to be “far reaching, broad and do not call for specific targeting of documents.” The court differentiated between this case and the cited Zubulake opinion, holding the ESI Protocol as proposed by plaintiff to be not only reasonable, but a way to significantly reduce the time and expense on both parties. The court entered plaintiff’s ESI protocol discovery order.