eDiscovery Case Law Update, in re: Corker v. Wholesale, et al.

By: Omen Safavi, Esq.
Professional Services Supervising Attorney, Cobra Legal Solutions

Cases can be won or lost with the proper use of discovery. Although discovery has its roots in early law, the changing face of technology and the law itself has modified the way discovery is handled.

Excel spreadsheets are one way that businesses tend to store, analyze, and manipulate data in their regular course of dealing and production. The spreadsheets are often discoverable, but problems arise when there is information contained in the spreadsheet that is proprietary, sensitive, or not responsive to the discovery requests. Corker v. Wholesale, et al. recently addressed a motion to compel concerning the production of an Excel spreadsheet and the obligation to provide information from those spreadsheets that was not directly responsive to a discovery request.

In Corker, the plaintiffs filed a “Motion to Compel Production of Document in the Form Kept in the Ordinary Course of Business and Without Redaction” as well as a “Motion to Seal Document.” Defendants filed a “Motion for Protective Order.” The plaintiff propounded discovery to defendant, BBC Assets. In response, BBC Assets produced summary documents which the defendant claimed provided the information requested in discovery. The plaintiffs objected to the summaries, and in response, BBC Assets instead provided a 2,269-page document. The document was a spreadsheet converted into PDF form. There were also redactions which concealed information BBC Assets had gathered regarding competitors’ sales figures. Plaintiffs then filed a motion to compel, seeking an order requiring BBC Assets to produce the spreadsheet in the form in which it is kept in the ordinary course of business and without the redactions.

The court noted that there were two issues raised by the production made by BBC Assets. First the court turned to the conversion of the spreadsheet into a series of static image files. The court cited Fed. R. Civ. P. 34(b)(2)(E)(ii), which states in pertinent part, “unless otherwise stipulated or ordered by the court. . . a party must produce [electronically stored information] in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” The court also looked to the 2006 advisory committee’s comments, which provides:

The rule does not require a party to produce electronically stored information in the form in which it is ordinarily maintained, as long as it is produced in a reasonably usable form. But the option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information form the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in litigation.

The court held that the initial summary documents were plainly insufficient under Fed. R. Civ. P. 34, as they were not in the form typically maintained for business, nor were they have functionality of the original format, the functionality being what made the documents so important for the plaintiffs. The court went on to hold that the static PDF images were insufficient for the same reasons.

BBC Assets argued in response to the plaintiffs’ claims that although there were limitations to the PDF images, the images provide all information relevant to the plaintiffs’ discovery requests while still protecting that information regarding the competitors’ brands and sales. The court then turned to the second concern, which is whether a party is permitted to redact material from responsive documents. The court noted that it is generally impermissible for a party to unilaterally decide to redact information from responsive documents and cited to Toyo Tire & Robber Co. v. CIA Wheel Grp., 2016 WL 6246384, at *2 (C.D. Cal. Feb. 23, 2016). The court stated that the applicability of this rule to Excel spreadsheets has not be totally explored, and produces unique challenges, as spreadsheets can be designed to store massive quantities of dates regarding many different business marking outlets, business ventures, etc. These spreadsheets are designed to be “queried or otherwise manipulated” in order to produce specific reports and information.

Ultimately the court determined it was not required to reach the issue of BBC Asset’s refusal to produce the information, as BBC Assets based its objection not only on relevance, but also on the fact that the information redacted is highly confidential and disclosure would put BBC Assets at a competitive disadvantage. The court cited to Fed. R. Civ. P. 26(c)(1)(G) and found that BBC Assets had demonstrated good cause to prevent disclosure of the redacted information.

However, BBC assets was compelled to produce the Excel spreadsheet in native format, because as the court noted at the time of the entry of the court’s order, BBC Assets had already stipulated to what the appropriate protections should be in this case. BBC Assets previously agreed to provide certain information that would be for “Plaintiffs’ Outside Counsel Only” who would then determine what was appropriate to share with the plaintiffs and what should remain protected for business reasons. The judge decided this would be enough protection for BBC Assets to produce the entire Excel spreadsheet in native format, without redactions.