Crane on Law by James Crane

In Lawson v. Sun Microsystems, Inc. (S.D. Ind. Sept. 4, 2007), the plaintiff in an action for an unpaid commission sought an order compelling defendant to provide documents in their native format to comply with FRCP 34 (b) (ii). The defendant provided hard copy documents in its production and argued that was a “reasonably usable” form as allowed under the amended Rules. Defendant alleged that plaintiff had not specified any particular form of production in his request.

The Lawson court held that plaintiff put defendant on notice that he was seeking production in an electronic format in a letter several months prior to defendant’s hard copy production. Because the defendant never objected to that request, the court concluded that the production must be in an electronic format.

The first thing that comes to my mind is, How much did this cost the corporate defendant? The primary change in discovery following the amendment of the Rules is that corporate defendants must act very quickly to consider and account for every detail related to electronically stored information. Counsel must examine and negotiate all of the preliminary steps involved in the early stages of discovery. You can bet that plaintiff counsel will seek out any opportunity to take advantage of any item that is overlooked.