In the case between Root Zoo Inc Fox Test Prep, and Steven Price (collectively, “Plaintiffs”) v/s Facebook Inc for breach of contract alleging Facebook to have misrepresented the quality of its click filters and charging advertisers for these fraudulent clicks. Further discovery disputes like Facebook not having ESI Protocol, not producing the requested documents on several demands rather impermissibly loaded them on internet, initiated Plaintiffs to file a case on them.
Considering the plaintiffs request, the court compelled Facebook to participate in creating ESI Protocol in native format. The plaintiff urged on Facebook in creating proper electronic production format within an inbuilt agreement for words, phrases, terms, curator and timeline. The defendant objected arguing that plaintiffs plea for such rigid restrictions like creation of ESI Protocol would further slackened the pace of discovery process where parties shall be forced to enter and address their potential issues on electronic format. Te court rejected defendants arguments saying that the argument for having ESI Protocol merely on the basis that it cannot solve each and every single issue of the user that may arise is no argument at all. Further the Discovery law stated that communication among counsel is an important part of e-discovery process. The court now turned to Facebook’s objection of production of ESI on nonnative and unsearchable format. According to Plaintiffs the Facebook created a long complaint database of customer in PDF format.
The court asked both the parties to negotiate on having ESI Protocol both for search objects and system of production. Simultaneously the court also ordered Facebook to prevent the use of website Watchdox.com uploading responsive documents for plaintiffs for review but restricted it to certain extent and prohibiting printing of those documents. Court refused defendant’s argument of retaining Watchdox.com owing to the sensitive nature of the documents – the argument belied and immediately asked the defendant to discontinue the use of the site ordering the re-production of any such documents those have been uploaded. The court also ordered the re-production of any such documents those were produced in an unsearchable format. But considering the humble plea of defendant that there was no possible way to reproduce the above documents because of its proprietary format, the court decided to settle of two alternatives :
- · That the counsel of the plaintiffs could go to the database of the Facebook
The parties were ordered to meet for further settlement.
Case Law Friday: Nat’l Day Laborer Org. Network v. United States Immigrations and Customs Enforcement Agency by Thought Leadership Team 18. February 2011 08:00
The Plaintiff Nat’l Day Laborer Org. Network under FOIA had requested to obtain records in a usable format from four government agencies, alleging that the data consisting of emails, spread sheets, paper records and electronic text records is all merged in one unsearchable PDF format file short of structural data. Judge of plaintiffs plea ordered production of structural data and demands cooperation under FOIA. On realizing that defandants production of data did not match the demands of FOIA, jury stated that regardless whether FOIA is subject to same rules governed by discovery requests, but Rule 34 should surely make the skilled litigators aware of the prevalent situation in which the suit is filed. Some amount of structural data is intrinsic to production of electronic data. Motionless imges of ESI are no longer required to be produced as determined by judge. Further under FOIA, the structural data is easily reproducible, unless the actually demonstrates that such data is difficult to be re-produced. Further after the court’s demand for detailed protocol of defandants production specifying the fields and boundaries of the structural data, it was though that this discovery issue could have been easily avoided by communication and cooperation. The court issued yet another ground breaking rule by ordering structural data connected with ESI pursuant to the request under FOIA. The judge even cited precedent of ( Aguilar v. Immigration and Customs Enforcement Division of the United States Department of Homeland Security) – a decision issued by Magistrate Judge Frank Maas . He referred to this opinion as a guidebook explaining structural data and acknowledging its importance not only in Central Rules of Public Procedure but also subject to General Rules of Discovery. Hence structural data is discoverable provided it is not a part of any specific claim or privilege. The series of three court decision is also recognizable for it held’s structural data to be a public record liable to be disclosed pursuant to public record request. These three decisions also generated a notable amount of discussion when they were issued, and include Irwin v. Onondaga Cnty. Res. Recovery Agency, O’Neill v. City of Shoreline and Lake v. City of Phoenix.
The judge Scheindlin concluded her decision by saying that these kind of electronic discovery issues can easily be avoided owing to the good faith amongst the plaintiff and the defendant where they generate good sense to meet and confer, assist and endeavor to communicate om production format unless of course the litigation issue is very complex and needs thorough attention. Her decision was frowned at by others and brought frustration within the courts regarding parties refusing to settle the issue with harmony and peace. Judge Scheindlin with a very valuable and generous closing remark said that it is too easy for lawyers to point a finger at courts and rules thus increasing the cost of litigation whereas meager discovery issues could be avoided and solved by incurring less expenses so far as possible.
By Ekroop Kaur
(Associate)
