The opinion of the court was delivered by: Peggy A. Leen United States Magistrate Judge
(Mot to Reconsider - Dkt. #347)
(Reqst Leave Respond - Dkt. #493)
(Mot. Strike - Dkt. #496)
The court conducted a hearing on April 14, 2011, on the parties' numerous discovery disputes. Guillot, George Paul and Robert McKirgan appeared on behalf of the Plaintiffs, and Samuel Lionel, Daniel Mayeda, David Korzenik, Maximiliano Couvillier, III, and Eric Swanis appeared on of the Defendants. This order disposes of the following moving and responsive papers: #347 - Plaintiff's Motion for Reconsideration by the United States Magistrate Judge of Her Order Dated November 12, 2010 (Doc. 345); #350 - Sealed Exhibits to #347 Motion; #354 - New Defendants' Memorandum in Opposition to Plaintiff's Motion for Reconsideration by U.S. Magistrate Judge of Her Order Dated November 12, 2010; #355 - New Defendants' Supplement to Memorandum in Opposition to Plaintiff's Motion for Reconsideration by U.S. Magistrate Judge of Her Order Dated November 12, 2010; #406 - Plaintiff's Reply to Defendant's Response to Motion for Reconsideration by the United States Magistrate Judge of Her Order Dated November 12, 2010, (Doc. 345) and Consolidated Memorandum in Support; #407 - Sealed Exhibits to #406 Reply; #491 - New Defendants' Objections to Plaintiff's New Material and New Arguments Submitted in Her Reply Brief in Support of Her Request for Reconsideration of the Court's Discovery Order;
#493 - Request for Leave to Respond to Plaintiff's New Material (in #491 Objections); #496 - Plaintiff's Motion to Strike New Defendant's Objections to Plaintiff's New Arguments Submitted in Her Reply Brief in Support of Her Request for Reconsideration of the Court's Discovery Order and Opposition to New Defendant's Request for Leave to Respond to Plaintiff's New Material #493 Request for Leave to Respond to Plaintiff's New Material (in #491 Objections); and #496 Plaintiff's Motion to Strike New Defendant's Objections to Plaintiff's New Arguments Submitted in Her Reply Brief in Support of Her Request for Reconsideration of the Court's Discovery Order and Opposition to New Defendant's Request for Leave to Respond to Plaintiff's New Material Plaintiff seeks reconsideration of an Order entered November 12, 2010 (Dkt. #345). The order was entered following a hearing conducted July 13, 2010, on: (1) a Motion for Protective Order (Dkt. #298) filed by the New Defendants; (2) a Cross-Motion to Compel (Dkt. #326), filed by Plaintiff, directed to Defendants Brickman and Elise; and (3) Plaintiff's Cross-Motion for Sanctions (Dkt. #327).
13, 2010 hearing, the court ordered counsel to meet and confer, in person, concerning Plaintiff's document production request No.s 9 and 16 to Defendants Brickman and Elise, which the court found overly broad and Defendants' responses, which the court found incomplete and/or evasive. The court also required the parties to prepare a Joint Status Report by August 10, 2010, and conducted a follow-up hearing on August 12, 2010, regarding the issues presented in the motions and Joint Status Report. The motions, discovery disputes identified in the Joint Status Report, and arguments of counsel at the August 10th hearing made a large number of requests for relief from the court. The court directed counsel for both sides to submit a proposed order outlining the relief each party requested, as well as their proposed findings.
The court reviewed the parties' proposed orders and entered an Order (Dkt. #345) resolving all outstanding disputes. Plaintiff now seeks reconsideration of a number of those findings and rulings. reviewed and considered the moving and responsive papers and the arguments of counsel, the court will grant Plaintiff's Motion to Reconsider to the limited extent the New Defendants shall the native files used with the MovieMagic Screenwriter software files for the Jersey Boys script, and drafts of scripts, as well as the Word and RTF files in the script directory. These files were produced in either PDF or TIFF format. Plaintiff originally requested discovery in native format, but the parties did not reach an agreement for production in native format and the New Defendants produced in PDF format. Counsel for the New Defendants subsequently produced documents in TIFF format at the request of counsel for Plaintiff.
The court originally denied Plaintiff's request for native files based on the representations of defense counsel and their principals that all scripts, script drafts and change pages had been produced and that the scripts and draft scripts were fully searchable in PDF format, and therefore reasonably purposes of Fed. R. Civ P. 34(b)(2)(E)(iii). However, having reviewed the voluminous moving and responsive papers, the court is persuaded that reconsideration of this aspect of the court's prior Order (Dkt. #345), is warranted. The court's prior order found that production of scripts and drafts in PDF was a reasonably useful format that comported with the New Defendants' ESI discovery obligations. The court now believes that finding was erroneous based on additional judicial training received in discovery of ESI, independent research, and increased appreciation of the factual and legal implications of discovery of electronically stored information.
Rule 34(b)(2)(E) permits a party responding to a request for electronically stored information which does not specify a form for producing it, to produce it in a form or forms in which it is ordinarily maintained, or in a reasonably usable form or forms. Plaintiff requested native form. Defendants objected to producing native form, and produced the documents in PDF and/or TIFF format. However, the writers who created and maintained the Jersey Boys script did so in Microsoft Word, RTF, and in some cases, the extent of which the partes dispute, using the MovieMagic Screenwriter software program. By producing the scripts in TIFF and PDF format, the Defendants converted them from their native, dynamic form to a static, two-dimensional image form, rendering them not "reasonably usable." See, Sedona Principle 12 Comment 12a, and Advisory Committee Notes to the 2006 Amendment of Rule 34(b). Accordingly,
1. Plaintiff's Motion to Reconsider (Doc. 345) is GRANTED to the limited extent the New Defendants shall produce scripts and drafts of the scripts for Jersey Boys, as well as drafts of the abridged Jersey Boys Libretto, and Coffee Table Book using Microsoft Word, RTF, and the MovieMagic Screenwriter software program in native format.
2. The motion is denied in all other respects.
3. The New Defendants shall have until April 29, 2011, to produce the native files ...