Smile for the Discovery Production

In a dispute between a photographer and an educational textbook publisher, the Plaintiff sough the production of a definition list to the Defendants’ database abbreviations.  Bean v. John Wiley & Sons, 2012 U.S. Dist. LEXIS 4900, 1-3 (D. Ariz. Jan. 17, 2012).

The Defendants’ sales, printing and distribution database was originally produced as screenshots and then as an Excel file.  Bean, at *1-2.

The Excel file column headings contained many alphanumeric abbreviations, such as “LME4” and “VG Enc PAG.”  Bean, at *2.

After reviewing abbreviations reminiscent of a lens focal length formula, the Plaintiff brought a motion to compel the Defendants to produce a “key” to the abbreviations.  Bean, at *2.

The Defendants refused, arguing that the deposition testimony covered the abbreviations and that they did not have to create a document for the Plaintiffs.   Bean, at *2.

Federal Rule of Civil Procedure Rule 34(a)(1)(A) permits a party to request electronically stored information that is “stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.” Bean, at *2, citing Fed. R. Civ. P. 34(a)(1)(A).

The Court explained a producing party has the burden of translating the ESI into a reasonably useable form.  Bean, at *2.

While the Excel spreadsheets were “generally” in a reasonably useable form, the “defendant’s use of cryptic abbreviations without definition renders these portions of the spreadsheets meaningless, just as if the data had been produced in code or in a non-readable format.”  Bean, at *3.

The Court disagreed with the proposition that the Defendant had already defined the abbreviations in deposition testimony, because it was the Defendants’ “burden to translate ESI into a useful format.”  Bean, at *3.

The Court reasoned the Plaintiff had requested the definitions of specific abbreviations.  As such, the Court found that requiring the Defendants “to supply definitions already in its possession is not overly burdensome compared to requiring plaintiff to sift through pages of documents.”  Bean, at *3.

Bow Tie Thoughts

It is novel argument, but logical a one, that “translation into a reasonable useable form,” could include producing a definition list of abbreviations.  Given how “text speak” could include a litany of shorthand abbreviations such as LOL (Laugh out Loud), the production of such a list might be necessary so “cryptic abbreviations” would not render a production meaningless.

There are valid arguments that such abbreviations could be defined in deposition or by special interrogatory.  However, requiring a party to conduct additional discovery to define abbreviations within the producing party’s control arguably goes against Federal Rule of Civil Procedure Rule 1, requiring the Federal Rules of Civil Procedure to be “construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”