In an insurance dispute over coverage, a Plaintiff sought production of electronically stored information in native file AND TIFF format after the Defendant produced discovery in hard-copy format. The Defendant opposed re-producing in native file format and sought cost-shifting if required to produce natively. Mancino v Fingar Ins. Agency, 2014 N.Y. Misc. LEXIS 30 (N.Y. Misc. 2014).
The Plaintiff sought the ESI in native file format with TIFF images in order to view objective metadata including the author(s), dates of creation, and dates of edits on a key file to know whether an “Activity Report” was changed after the initial creation or the start of the lawsuit. Mancino, at *7.
The Defendant countered that issues of metadata were “not involved” in the lawsuit and such a production was unnecessary. Id. the Defendant further argued the Plaintiff should have incurred the $3,500 native production costs and that the TIFFing would be a “laborious task.” Mancino, at *8.
Judge Rakower quickly listed the Zubulake cost-shifting factors (cited in U.S. Bank Nat. Ass’n v. GreenPoint Mortgage Funding, Inc., 94 A.D. 3d 58, 63-64 [1st Dept 2012]) and held that cost-shifting was not justified and that the producing party was to pay their own production costs. The Court clearly ordered the production of the ESI in both native file format with TIFFs. Mancino, at *8-9.
Bow Tie Thoughts
State court litigation is often overlooked by eDiscovery commentators. Mancino is a very good reminder that over 90% of litigation in this country is in state court about regular people. The Plaintiffs in this case had their home burglarized and the resulting litigation was over coverage to recover stolen property. The key discovery focused on a file over who changed what and when on an insurance document. Few examples better highlight the need for metadata.
One big difference between this case and Federal Court is that a producing party need only produce in one form. A producing party would have to produce in native file format or with TIFF and metadata, not both. That being said, a production cost of $3,500 on a case of this size might be on the high side (it is unclear how many computers were at issue, number of hours spent, cost of production media, etc). Moreover, most processing software could do such a production with a few keystrokes (and I would bet at a lower cost then argued to the Court, depending on the volume of data to be collected pertaining to one insured party and other relevant files). There are of course other factors that could drive up costs, but I would need more information to understand why there was a $3,500 production cost estimate for the specific discovery sought.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.