United States District Court, S.D. New York
April 6, 2004.
BEVERLY ZAKRE, Plaintiff, -against- NORDDEUTSCHE LANDESBANK GIROZENTRALE, Defendant
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
By letter dated January 29, 2004, plaintiff Beverly Zakre
("Zakre") has requested an order compelling defendant Norddeutsche
Landesbank Girozentrale ("Nord/LB") to review two compact discs for
responsive documents. One disc contains over 200,000 Bloomberg emails and
the other contains over 4,000 offline emails. Nord/LB has conducted a
review of the emails for privileged documents, but has not conducted a
review for responsiveness to Zakre's specific document requests.
The offline and Bloomberg emails have been provided to Zakre in a
text-searchable format. In other words, Zakre may search either disc for
single words or phrases, or combinations of words or phrases. Nord/LB
argues that the provision of the emails in this format constitutes a
sufficient response to Zakre's document requests because the text search function will allow Zakre
to locate those emails responsive to her requests. Nord/LB cites the
findings of The Sedona Conference Working Group Series entitled The
Sedona Principles: Best Practices, Recommendations & Principles for
Addressing Document Discovery (Sedona Conference Working Group
Series 2004). Principle 11 states that:
A responding party may satisfy its good faith
obligation to preserve and produce potentially
responsive electronic data and documents by using
electronic tools and processes, such as data
sampling, searching, or the use of selection
criteria, to identify data most likely to contain
Nord/LB also cites to an opinion in the District of Columbia in which
the defendant produced a CD-ROM and paper documents that the court
referred to as a "mountain of information." In re Lorazepam and
Clorazepate Antitrust Litig., 300 F. Supp.2d 43, 46 (D.D.C. 2004).
While the plaintiffs argued that defendant owed them a "meaningful and
detailed document index," the court held, in referring to the CD-ROMs,
that if the information "can be made readable, and, more importantly,
searchable, there is no need for an index of them. To the contrary, the
[plaintiffs] can then search the documents on their own, regardless of
any index produced by [defendant]." Id. at 46-47.
Zakre argues that the text search function may not be sufficient to
determine whether it has found all email responsive to her requests. In
light of the Sedona Principles and In re Lorazepam, and in particular of the Federal Rules of Civil
Procedure, Nord/LB is not obligated to provide more than a searchable
CD-ROM. Rule 34(b) provides that:
A party who produces documents shall produce them
as they are kept in the usual course of business
or shall organize them and label them to
correspond with the categories in the request.
Nord/LB has produced the documents in as close a form as possible
as they are kept in the usual course of business. Because the emails are
also text-searchable, Nord/LB is not further obligated to organize and
label them to correspond with Zakre's requests.
Zakre's motion for an order to compel discovery is denied.
It is so ordered.
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