Clerkin et al v. Mylife.com Inc. et al

Filing 148

ORDER re 147 Joint Discovery Letter Brief filed by Mylife.com Inc., Veronica Mendez, John Clerkin. Signed by Judge Nathanael M. Cousins on 10/04/2012. (nclc1S, COURT STAFF) (Filed on 10/4/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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JOHN CLERKIN and others,
Plaintiffs,

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v.

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MYLIFE.COM INC.,

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Case No. 11-CV-00527 CW (NC)
ORDER RESOLVING
DISCOVERY DISPUTE ABOUT
FORMAT FOR DOCUMENTS
PRODUCED BY MYLIFE
Re: Dkt. No. 147

Defendant.

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This discovery dispute exemplifies the adage that litigants should be careful what

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they wish for; their wish may come true.
More than six months ago, this Court granted Plaintiffs’ motion to compel and

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ordered MyLife to produce documents requested by Plaintiffs. MyLife complied,

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producing more than 4.6 million pages of documents to Plaintiffs in a rolling production.

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At the request of Plaintiffs, MyLife produced the documents in “PDF” format. Portable

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Document Format (PDF) is a commonly used file format used to represent documents in

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a manner independent of application software, hardware, and operating system.1 Free

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publicly available software, such as Adobe Reader, permits users to view documents

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produced in PDF.

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Portable Document Format, Wikipedia (October 3, 2012, 9:41 a.m.),
http://en.wikipedia.org/wiki/Portable_Document_Format.
Case No. 11-CV-00527 CW (NC)
ORDER RE: DOCUMENT FORMAT

Plaintiffs were able to view the documents produced by MyLife. Their present

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complaint is that in the format the documents were produced, it is difficult for their

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attorneys to search and organize the documents using their available digital tools.
In hindsight, Plaintiffs wish they had specified that the documents be produced in

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a searchable format, such as “searchable” PDF, TIFF, or in their native format. Doc.

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No. 147 at 4. In hindsight, if Plaintiffs had asked for the documents to be produced in a

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searchable PDF format, they now would be able to search through the documents much

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more easily.

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Technology provides a possible solution. As suggested by Plaintiffs, the

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documents produced could be converted into a more searchable format if one were to

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“OCR” the documents. OCR, meaning optical character recognition, is the mechanical

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or electronic conversion of scanned images of handwritten, typewritten or printed text

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into machine-encoded text.2 If the MyLife documents were converted into searchable

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machine-encoded text, then Plaintiffs could both search and view the documents

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electronically. The parties agree that the cost to OCR the MyLife document production

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is approximately $12,000.
The question presented is whether MyLife should be compelled to reproduce its

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4.6 million page document production in a searchable format. In the alternative,

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Plaintiffs assert that MyLife should pay for the cost to OCR the documents already

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produced.
Federal Rule of Civil Procedure 34(b)(2)(E)(ii) provides that if a document

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request “does not specify a form for producing electronically stored information,” then

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the producing party must produce it in a “form or forms in which it is ordinarily

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maintained or in a reasonably usable form or forms.” In this case, however, plaintiffs did

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specify a format for producing electronically stored information, and MyLife produced

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documents in precisely the format requested by Plaintiffs. In hindsight, Plaintiffs could

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Optical Character Recognition, Wikipedia (September 27, 2012, 2:34 p.m.),
http://en.wikipedia.org/wiki/Optical_character_recognition.
Case No. 11-CV-00527 CW (NC)
ORDER RE: DOCUMENT FORMAT

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have asked for a searchable format before MyLife began its production. At the very

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least, Plaintiffs should have recognized as soon as they began their document review that

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they should have specified a searchable format. Plaintiffs charge that MyLife has

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engaged in “discovery abuse” by producing documents in precisely the format requested

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by Plaintiffs. Dkt. No. 147 at 3.3 The Court disagrees, and suggests that Plaintiffs

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should be more careful in what they request in the future.
In sum, because the Court concludes that the format of MyLife’s document

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production complied with the format requested by Plaintiffs, MyLife satisfied Rule 34.

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The Court therefore denies Plaintiffs’ request to compel MyLife to reproduce its

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production. The Court also denies Plaintiffs’ request for MyLife to pay for the cost to

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OCR the documents already produced.4
The parties must meet and confer with each other about the format of any

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documents to be produced in the future. Any party may object to this order within

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fourteen days under Federal Rule of Civil Procedure 72.

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IT IS SO ORDERED.

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DATED: October 4, 2012

____________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

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Plaintiffs also complain that the 4.6 million page production includes documents
they do not think are relevant. Plaintiffs do not specify how many documents fall into
this category; nor do they explain how they have been prejudiced.

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The Court acknowledges that MyLife proposed a compromise to resolve this
discovery dispute: the parties split the $12,000 cost of OCR. Dkt. No. 147 at 6:21-22.
Plaintiffs did not accept.
Case No. 11-CV-00527 CW (NC)
ORDER RE: DOCUMENT FORMAT

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