Plaintiffs' motion to compel discovery and for sanctions, filed November 12, 2008, was heard by this court on January 21, 2009. The court issued an order granting plaintiffs' motion to compel, and ordered defendant to produce its electronic proprietary database files in the format in which they are maintained, together with defendant's software application required to search and manipulate the files.
The court submitted for later decision plaintiffs' motion for sanctions reflecting their fees and expenses in bringing the motion to compel defendant's electronic database, and their tandem motion to compel defendant's production of expert documents, which defendant produced after plaintiffs filed this motion.
Plaintiffs' motion for sanctions is made pursuant to Fed. R. Civ. P. 37(a)(5)*fn1 and (b)(2).*fn2 These rules authorize imposition of monetary sanctions for failure to provide discovery unless, inter alia, such failure was "substantially justified" or an award of expenses would be "unjust." The court addresses in turn each request for sanctions.
For the following reasons, the court concludes that defendant's failure previously to provide its electronic files in their original (Sybase) format was substantially justified by plaintiffs' continuing offer to accept the data in a "reasonably acceptable" format.
Plaintiffs' production requests, served May 8, 2008, sought generally all documents, including electronically stored information ("ESI"), responsive to their requests. The requests expressly sought ESI in its native format and any software necessary to access the information. See Jt. Stmt. filed Sept. 4, 2008, at p.15; see also, Fed. R. Civ. P. 34(b)(1)(C) (authorizing the requesting party to "specify the form or forms in which electronically stored information is to be produced"); Fed. R. Civ. P. 34(a)(1)(A) (authorizing the request of ESI "in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form"); and Fed. R. Civ. P. (b)(2)(E) (ii) ("If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms").
Defendant's initial responses to plaintiffs' production requests failed to include any ESI, but its responses to interrogatories identified two electronic databases, an "Access" database containing records between April 1995 and January 2000, and a "proprietary" database containing subsequent records. Jt. Stmt. filed Sept. 4, 2008, at p. 25. Subsequent to the August 13, 2008 filing of plaintiffs' initial motion to compel production of defendant's electronic databases, defendant informed plaintiffs that it would provide the data. Plaintiffs nonetheless sought from this court an order compelling such production, not in its native format but in a "reasonably acceptable format," that would not "remove or significantly degrade" the searchability of the data. Id. at pp. 26, 36. Pursuant to the parties' agreement, the court ordered only that, "Defendant shall, on or before September 19, 2008, complete production of its 'Access' and 'proprietary' electronic databases." Order filed September 11, 2008, at p. 6. The compliance deadline was extended by the district judge to January 26, 2009. See Dckt. No. 86.
Plaintiffs filed the instant motion on November 12, 2008, seeking production of defendant's proprietary database in its native format. Dckt. No. 71. However, the parties agreed three times to move the hearing on the motion, until it was finally heard on January 21, 2009.
See Dckt. Nos. 72, 74, 82, 83, 87 and 88. In his declaration filed in support of the motion, plaintiffs' counsel stated that in September 2008, defense counsel had provided an "Excel spreadsheet" and "Access table" purporting to reflect the proprietary database. Plaintiffs' counsel sought, through correspondence with defense counsel and telephone conferences with defendant's data professionals, to confirm that there was no loss of functionality of the database in these formats. However, after identifying deficiencies in the produced data, plaintiffs' counsel made clear in correspondence to defense counsel, on October 13, 2008, that plaintiffs sought "the 'proprietary' database consisting of both the files representing the Sybase database and any programs necessary to access the data in the same manner as it is accessed by Viking employees. . . . [W]e are entitled to both the proprietary database and any files required to use it as Viking users do." Oroza Decl., Dckt. No. 96, at p. 13. However, plaintiffs again offered to consider a fully functional alternative "to facilitate resolution of this issue."*fn3 Id.
On October 17, 2008, defense counsel provided a "second Access table" and, on October 27 and 31, 2008, informed plaintiffs' counsel that he was still working with his client to provide a meaningful "proposal" or "offer" that "might provide you with what you need with respect to the database." Id. at pp. 16, 17. However, in a letter dated November 5, 2008, defense counsel stated that "all data regarding the Series 3000 products" had been produced pursuant to the Access and Excel files, and offered "to provide a declaration confirming this." Id. at p. 19. Defense counsel further stated, "if you nevertheless believe this production remains insufficient, please explain. Moreover, if you believe that we must also produce either the Sybase or proprietary programming, please provide any legal authority you have to support your position." Id. Plaintiffs provided such authority on November 19, 2008. Exh. 6 to Oroza Decl.
In the joint statement filed January 14, 2009, plaintiffs' counsel explicitly sought defendant's proprietary database in its original format, based primarily on the argument that the court had ordered defendant to do so. Plaintiffs' counsel reiterated this argument at the hearing on January 21, 2009, and represented that it would obtain its own license from Sybase in order properly to access defendant's data in its native format. The court expressed its lack of confidence in the repeated assurances that full disclosure of defendant's electronic information could be accomplished in any format other than "the exact format" in which "it has been stored and maintained." See Transcript of Jan. 21, 2009 Hearing, Dckt. No. 101, at pp. 13-14; see also, Advisory Committee Notes for the 2006 Amendment of Rule 34 ("If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature").
Accordingly, the court ordered -- for the first time -- that defendant "produce the electronically stored information . . . in the format that it's maintained and stored, and . . . produce whatever software is required to operate this data, to be able to access it, and search it, and manipulate it." See Transcript of Jan. 21, 2009 Hearing, Dckt. No. 101, at p. 14; see also, Order filed Jan. 21, 2009, Dckt. No. 99, at p. 2 ("[d]efendant shall . . . produce said files in the exact format in which they are maintained and stored (i.e., as a Sybase database), and provide the software or 'front end' application required to search and manipulate the files"). The compliance deadline set by this court, January 23, 2009, was extended by the district judge to January 28, 2009. Dckt. No. 100. (The production has apparently been made, as the matter has not further been raised before the court.)
Therefore, the failure of defendant previously to provide its proprietary database in its native format was not a violation of court order. Rather, based on plaintiffs' prior informal agreements to obtain the information in an alternative format (despite their initial request for ESI in its native format), and this court's reiteration of the parties' agreement for such disclosure, defendant's prior nondisclosure of its Sybase database was "substantially justified," and does not warrant the imposition of sanctions. See Fed. R. Civ. P. 37(a)(5)(A)(ii) (sanctions improper if opposing party's nondisclosure was substantially ...