Tuesday, January 15, 2013

Judge rejects party's offer to hand over blog credentials (login/password) instead of documents during discovery

In the highly contentious realm of electronic discovery where login passwords are zealously guarded, one plaintiff had no qualms about granting such access if it meant evading her burden of production in an acceptable format.

In German v. Micro Elecs., 2012 U.S. Dist. LEXIS 4594 (S.D. Ohio 2013), the trial court held it impermissible for a party to shift its burden of production due to the party’s refusal to produce the sought after electronically stored information (ESI) in an acceptable format.

In a discovery dispute arising from an employment action, the plaintiff offered to provide the defendants with her login credentials and passwords to her blogs and websites she frequented in lieu of producing responsive ESI. The defendants refused the offer due to the risk of being accused, or found to have altered relevant evidence.

Although it was an unusual offer, the defendants’ attorney employed commendable dexterity in effectively forecasting the risk associated with accepting the plaintiff’s offer to hand over her passwords.  

During the course of discovery, the defendants requested that the plaintiff produce all online postings, blogs and similar online activities that addressed the plaintiff’s workplace, health condition, or other issues raised in her complaint. 

The plaintiff responded by sending over a hundred pages of portions of blogs and websites that she had copied and pasted without any source attribution. The defendants rejected the submission because it considered the production deficient as it did not capture the original and complete text, formatting, and images of a blog or website. The defendants suggested that the plaintiff utilize a portable document format (PDF) or any format that is reviewable and that captures the documents in their original format. 

Although the plaintiff characterized herself as an extensive blogger and sophisticated user of the Internet, she stated that defendants’ request for production of screen shots or PDF was particularly too burdensome.  As an alternative, she offered the defendants direct password access to all her online journals, blogs, and social media websites.

The court found the plaintiff's excuse and suggestions to be unacceptable and noted that despite the defendants not requesting a specific form for producing the ESI, the plaintiff had a burden to produce the requested information in a form that the information is ordinarily maintained or in a reasonably usable form. The court ruled that the copied and pasted excerpts were neither an acceptable nor reasonable form of production. 


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