Be Careful What You Ask For in New York
In Dartnell Enterprises, Inc. v Hewlett-Packard Co., the Defendant Hewlett-Packard (HP) was ordered to produce responsive documents in their native electronic format despite its production of hard copies of those documents. The underlying action involved a business relationship between Dartnell and HP. Plaintiff Dartnell alleged that HP had engaged in bad faith and tortuously interfered with its prospective business relationship with a third-party.
The Plaintiff moved for an order to compel HP to produce responsive documents in an electronic native format, as kept in the regular course of business. HP opposed the production on the grounds that they had produced voluminous hard copies of documents requested by Dartnell. As such, HP argued it had met its duty of disclosure under CPLR §3122[c] and nothing more was required. Further, HP argued that the Federal Rules of Civil procedure which require the production of electronically stored information (ESI) did not apply to the case.
The disclosure requests by Plaintiff, specifically requested that ESI be provided as part of the production. The Plaintiff demonstrated that some of the hard copy documents provided by HP, when obtained in their native electronic format, contained additional relevant, material and necessary information such as metadata which had been removed from the documents when produced in hard copy. Moreover, HP’s paper production did not include an index indicating which documents were responsive to which demand.
Upon review of these facts, the Court made the following findings:
- The New York Civil Practice Law and Rules Article 31 do not prohibit disclosure of ESI.
- The language of CPLR §3122 does not limit document disclosure to a paper copy.
- CPLR §3101 and 3122 supports that where Plaintiff requests electronic discovery, such discovery should be produced in an electronic format.
- CPLR §3122(C) requires that parties provide an index to its responsive electronic files identifying the document produced in response to each demand.
Since the Defendant did not present any other valid basis or reason for not complying with the disclosure requests in an electronic format, the Defendant was required to produce the requested documents in their native electronic format, including any metadata. Also, under the Court’s broad discretion, HP had to provide an index to the electronic files identifying the document produced in response to each demand.
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