Index not required if produced data is searchable
By MWS
In re Lorazepam and Clorazepate Antitrust Litig., 2004 WL 77921 (D.D.C. Jan. 16, 2004).
Employee Implicated: Counsel for Health Insurance Company
e-Lesson Learned: A recipient of produced ESI can’t complain that the data isn’t indexed, so long as it’s readable and searchable.
This will teach you to keep your complaints to yourself, or at least to think outside the box a bit before you file a motion to compel production of an index. Mylan Laboratories, a company which produced certain generic anti-anxiety medications, was charged with having entered into illegal agreements to monopolize the markets for those medications. Certain health insurers opted out of the settlement of that cause and separately sought to recover from Mylan.
In response to the health insurers’ discovery requests, Mylan produced what the court called “a mountain of information.” Some of this was produced in hard copy format, but much of it was produced in electronic format on 23 CDs. The insurers complained to the court that Mylan did not index the data on the CDs. The insurers argued that, because of the immense amount of information contained on the CDs, it would take the insurers too long and would cost too much for them to have to sift through all of such data.
The court implicitly chastised the insurers for so complaining, noting that it had previously urged the parties to “use their creative imaginations to see how the prior discovery responses could be rendered mutually searchable by electronic means.” The court then held that, so long as the data on the CDs is readable and searchable, no index would be required. The court then required the insurers to make the CDs available (at the insurers’ expense) to a company that specializes in electronic discovery so that it could be ascertained whether it would be too burdensome (primarily in terms of cost) for the insurers to simply search and index the documents on their own.
Prudent counsel will at least try to come up with some creative ideas for sifting through “mountains” of production received before wasting time and clients’ money on easily resolvable motions to compel.
MWS is a third-year law student at Seton Hall University in Newark, New Jersey.
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February 17th, 2009 at 9:09 am
I have to agree with the author of this post. It seems as though if the information is produced in a format that can be searched (and conceivably, CDs are capable of being searched), this should suffice. Requiring the producing party to index the documents seems to place an improper burden on the producing party. It seems as though the insurers not only wanted information produced, but also wanted the work done for them.
While I agree that information that is not searchable needs to be formatted in order to ease discovery and reduce costs, electronic data is able to be searched and does not impose a substantial burden, in my opinion.
February 20th, 2009 at 11:15 am
I am glad to see the outcome of this case. While most may find that 23 CDs full of files may be burdensome to sift through, requiring that the producing party index all of the CDs would not only increase costs of discovery but would also result in the producing party essentially doing the requesting party’s job. Even in a field such as patents where applicants are required to disclose the best mode of their invention in their application, applicants are not required to put big flashing lights around the disclosure in the application. Similarly, here, the producing party has produced the documents that contain the files the opposing party asked for in a searchable medium. The information is there the requesting party just has to search a little for it.
February 21st, 2009 at 3:58 pm
On the other hand, even if documents are searchable, indexing them would conceivably put them in some type of order. And the burden wouldn’t neccessarily be so great on the responding party if that party kept adequate records in the first place.
March 14th, 2009 at 1:53 pm
[...] may come to different conclusions. When the District of Columbia was posed with this issue in In re Lorazepam and Clorazepate Antitrust Litig., the court stated that so long as the data on the CDs is readable and searchable, no index is [...]