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In Swift Beef Co. v. Alex Lee, Inc., No. 18-0105-EFM-KGG, (D. Kan. Oct. 31, 2018), Kansas Magistrate Judge Kenneth G. Gale, finding that “the information requested by the subpoena has limited relevance and is not proportional to the needs of the case” and that the non-party entity (Vantage Foods) had established that its production would be unduly burdensome, granted Vantage’s Motion to Quash Subpoenas and denied the plaintiff’s Motion to Compel Compliance with Subpoena as moot.

Case Background

In this contract dispute involving a meat processing and packaging plant located in Lenoir, North Carolina, Vantage had previously operated the Lenoir plant that is currently owned by the defendant and the subject of the underlying lawsuit. Vantage has no contractual or business relationships with either of the parties in the underlying lawsuit and “exists essentially as a defunct entity”.  Nonetheless, the plaintiff served a subpoena on Vantage on May 29, 2018.  Vantage contended that this initial subpoena was “procedurally defective and substantively flawed.”  As a result, the plaintiff served a second subpoena on June 12 to address those issues.

While Vantage conceded that the “procedural defects were corrected by Swift’s issuance of [the] modified subpoena….”, it argued that both subpoenas “should be quashed in their entirety and Vantage Foods should not be required to produce any of the items Swift requests.”  The court chose to consider the first subpoena moot as it was replaced by the modified subpoena.  Nonetheless, according to Vantage, the modified subpoena consists of “twenty-five sweeping requests for documents covering almost every conceivable aspect of Vantage Food’s obsolete business relationship with Alex Lee and Alex Lee’s subsidiaries.”  Vantage argued that its contracts with the defendant “are separate and completely unrelated to the disputes between Swift and Alex Lee, [thus] they cannot be used to support or defend any of the contract claims in this case.”  Also, as a defunct entity, Vantage estimated it would take hundreds of hours to complete a comprehensive search for documents responsive to its requests.

The plaintiff countered that the categories of requested information “are targeted to seek information relevant to Alex Lee’s counterclaims and arguments raised in the North Carolina Lawsuit.”  The plaintiff also argued that “Vantage has provided no evidence that responding to the subpoena would be unduly burdensome.”

Judge’s Ruling

Referencing Fed.R.Civ.P. 45, Judge Gale stated: “The Court agrees with Vantage that the relevance to the issues in the underlying lawsuit of this comparison between performances of different entities (one of which is not a party to this law suit) during different time periods is suspect…Given the burden imposed on Vantage and proportionality of the information requested to the needs of the case, discussed infra, the Court finds that Swift has not established the relevance of the information requested.”

Judge Gale also disagreed with the plaintiff’s take on Vantage’s burden, stating: “the subpoena is unduly burdensome on its face. Vantage’s ‘relative access’ to the information is tenuous. As a defunct entity, Vantage has limited resources, particularly in light of the burdensomeness of complying with the subpoena. The limited relevance of the information means it has limited ‘importance…in resolving the issues’ present in this lawsuit. Further, Vantage contends that ‘to the extent any of the documents requested in the Subpoenas are relevant to this case, they were likely stored on Alex Lee’s systems and Alex Lee should have access to them.’”

Stating “The Court will not compel compliance with a subpoena that appears to constitute a fishing expedition”, Judge Gale granted Vantage’s Motion to Quash Subpoenas and denied the plaintiff’s Motion to Compel Compliance with Subpoena as moot.

So, what do you think?  Was this a fishing expedition or did the plaintiff have a valid right to request documents from Vantage?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

In Metlife Inv’rs. USA Ins. Co. v. Lindsey, No. 2:16-CV-97 (N.D. Ind. Oct. 25, 2018), Indiana Magistrate Judge John E. Martin granted the motion of the defendants/counter plaintiffs (defendants) to compel the plaintiff/counter-defendant (plaintiff) to produce all responsive documents in the form in which they are maintained in the usual course of business (i.e., native files with metadata) and also ordered the defendants to file an itemization of costs and fees, including attorney’s fees, incurred in making the Motion to Compel.

Case Background

In this case where the plaintiff sought rescission of a life insurance policy issued to one of the defendants based on her alleged misrepresentations during the application process.  Throughout written discovery, the plaintiff generally produced documents in non-searchable PDF format, which it claimed is the “most usable format” appropriate for the information. The defendants repeatedly objected, arguing that the plaintiff was obligated to produce the documents as they are maintained in the normal course of business, i.e., in their “native” format.

The defendants identified several electronic platforms in which the plaintiff kept its documents in the usual course of business, but the plaintiff indicated that the additional data that the defendants would receive from production in native format was irrelevant, and claimed that it was not obliged to produce it, leading to the defendants’ motion.

Judge’s Ruling

Noting that “MetLife concedes that the method in which it produced the documents is not how they are kept ‘in the usual course of business,’ as required by Rule 34(b)(2)(E)(i)” and that MetLife “cites no authority showing that this satisfies its obligations under Rule 34”, Judge Martin also stated that “MetLife’s production was not consistent with what the parties discussed at the beginning of discovery. On July 28, 2016, the parties filed their Report of Parties’ Planning Meeting, which stated: ‘The parties anticipate making a preliminary production of ESI by hard copy…All ESI produced electronically will be produced in native format to the extent possible.” (emphasis added). After MetLife made its initial production in response to Defendants’ first requests for production, Defendants objected to the format of the documents, but MetLife apparently ignored the objections and continued to produce in PDF format.”

Judge Martin also stated: “MetLife says that production in native format would not yield relevant information, because in its view the ‘only remaining issue’ in the case is whether it had a duty to investigate the information in the policy application prior to issuing it. However, MetLife has not shown that the requests fall outside of the legitimate scope of discovery… If the Court were to apply this standard, information about who accessed the application information – which might be visible in native form – could be relevant to whether that person should have investigated further.”

As a result, Judge Martin granted the defendants’ motion to compel the plaintiff to produce all responsive documents in native format and also ordered the defendants to file an itemization of costs and fees, including attorney’s fees, incurred in making the Motion to Compel.  However, Judge Martin also said this:

“Finally, although Defendants are entitled to the previously produced documents in native form, the Court clarifies that they are not entitled to all metadata. Some of Defendants’ filings could be interpreted to argue that Defendants are entitled to all metadata related to the documents previously produced. In general, metadata must be specifically requested in advance, and Defendants did not do that…While production in native format will inevitably result in the exchange of some metadata, Defendants are not entitled to all metadata generally, except to the extent it appears with the documents as kept in the usual course of business.”

Hmmm…

So, what do you think?  Should metadata be requested in advance or does the request for “responsive documents in the form in which they are maintained in the usual course of business” assume the inclusion of metadata (assuming that involves production of native format documents)?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.