The United States of America et al v. Safeway, Inc.
OPINION entered by U.S. Magistrate Judge Tom Schanzle-Haskins. Relator Thomas Proctor's Motion to Compel 95 is ALLOWED IN PART. See written order. (LB, ilcd)
Thursday, 08 March, 2018 03:06:41 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
UNITED STATES, et al. ex rel.
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Relator Thomas Proctor’s
Motion to Compel (d/e 95) (Motion). For the reasons set forth below, the
Motion is ALLOWED in part.
On February 27, 2017, Relator Thomas Proctor served his First Set
of Requests for Production of Documents to Defendant (Request) on
Defendant Safeway, Inc. (Safeway). Motion, Exhibit A, Request. The
Request asks for various Electronically Stored Information including
Safeway’s PDX pharmacy transaction data (PDX Data), as well as emails
and other electronically stored documents.
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The Request asked for Electronically Stored Information in the
J. Form of Production for Electronically Stored Information: Unless
otherwise agreed to by counsel, electronically stored information
(“ESI”) shall be produced in its unaltered native form and as it is
maintained in the ordinary course of business. If, however, you have
created a litigation database to facilitate the production of documents,
the ESI shall be produced in multi-page TIFF format (minimum 300
dpi resolution) with searchable text files and native files using
“(beginning Bates number).(extension)” for each document as the
filename. Such production shall include .opt load files and .dat files
that preserve all associated metadata. ESI that is not reviewable with
ordinary Microsoft Office software should be produced with
instructions and software necessary to review such ESI. Any
production of ESI must retain all of the attributes of the original files,
including appearance, searchable text, and metadata.
Certain categories of documents shall be produced (or incorporated
in a litigation database) in the following formats unless otherwise
agreed in writing:
a. Electronically stored communications, such as e-mails, shall
be produced in their native format (.pst files produced by
custodian are acceptable).
b. Unless other agreements are made between the parties, all
information extracted from databases, data tables, or data
warehouses, such as all types of transaction data (including
sales transaction data and claims transaction data), as well as
price lists, code lookup tables, and other requested information
shall be produced in a set of tab-delimited plain-text ASCII flat
files with the first line of each file consisting of a header line
indicating the names of the data fields, and subsequent lines
containing data. In the event that a tab character occurs within
a data field, it should be replaced with the two-character string
“\t”; if the two character string “\t” already occurs within a data
field, it should be replaced with the three-character string “\\t”.
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i. Each data file can be split into multiple sub-files for
convenience, as long as each sub-file has its own header
line and the header line is identical across all sub-files.
ii. Each data file must be accompanied by a log file
indicating the commands used to prepare the output,
and/or any interpreted or executed computer code used
to generate the output. Logs and codes should be
annotated with the product vendor or language version
(e.g., “Oracle PL/SQL 12c (18.104.22.168.0)”).
iii. Once generated, all data files should be losslessly
compressed into a commonly available format which
supports password protection (e.g., 7zip, RAR, ZIP) and
encrypted using a password, which shall be provided
under separate cover.
c. All documents that cannot be converted into TIFF files in a
reasonably usable form and without omitting user-created
content (for example audio, video, spreadsheets, Microsoft
documents in native format (Native Files) and image files such
as TIFF and pdf (collectively Image Files).
Request, Instructions ¶ J (Request ESI Instructions).
The parties negotiated over the production of the requested
materials. Safeway has produced some files. Safeway produced 260,640
Bates numbered documents. The Motion does not concern these files.
Memorandum in Support of Motion to Compel (d/e 96) (Proctor
Memorandum), at 2 n.3.
Safeway also produced approximately 575,000 documents in Native
Format (Issue Files). Native format is the format in which the documents
were created. Some of the files produced were a mass of
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incomprehensible special characters and other symbols. See Proctor
Memorandum, at 5. Safeway used a key word search to collect Issue
Files, but did not otherwise review the Issue Files to determine the
documents produced by the key word search were responsive to Proctor’s
Safeway has not produced the PDX Data.
Proctor asks the Court for the following relief: (1) order Safeway to
review the Issue Files (and any other subsequently produced documents)
to identify the non-privileged responsive documents; (2) order Safeway to
produce the responsive documents from the Issue Files in Bates numbered
Tagged Image File Format (TIFF) or Adobe Portable Document (PDF)
format (collectively referred to as Image Files); and (3) order Safeway to
produce the PDX Data immediately.
Safeway responds that Proctor’s request is overly burdensome, cost
prohibitive, and cannot be accomplished within the timeframe of the
discovery schedule. Safeway says that it has resolved the problem with
the documents in the Issue Files that contained masses of
incomprehensible symbols, but has not explained how or when. Defendant
Safeway, Inc.’s Opposition to Relator’s Motion to Compel (d/e 100)
(Safeway Response), at 6-7. Safeway also states that it is now reviewing
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the Issue Files to identify responsive documents through use of a
technology assisted review (TAR) process. Safeway states that it reviewed
all documents produced after it produced the Issue Files with the TAR
process to identify responsive documents. Safeway also stated during the
parties negotiations that it was willing to place Bates Numbers on the
documents produced. Safeway Response, at 5-6, 7.
Safeway, however, states that creating Image Files is overly
burdensome and cost prohibitive. Safeway asks that if the Court orders it
to produce Image Files of the Issue Files, that the Court order Proctor to
pay a significant part of the costs of producing any Image File copies of the
Finally, Safeway denies that it unreasonably delayed producing the
PDX Data. Safeway states that it will produce the PDX Data by March 28,
2018. Safeway Response, at 9.
Safeway must produce responsive unprivileged documents within its
custody and control that are relevant for purposes of discovery. Fed. R.
Civ. P. 34(a). With respect to Electronically Stored Information, Safeway
must produce documents as they are kept in the usual course of business
or must organize and label the documents to correspond to the categories
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in the request. Safeway must produce the documents in the form in which
the documents are ordinarily maintained or in a reasonably useable form.
Proctor’s Request ESI Instructions stated that Safeway could produce the
documents as Native Files. The Request ESI Instructions directed
Safeway to produce Image Files if it created a litigation database.
Safeway, however, was not required to produce documents in more than
one form. Fed. R. Civ. P. 34(b)(2)(E). The Court, therefore, will not order
Safeway to produce the Issue Files as Image Files. Safeway, however,
must produce documents in a useable format if it elects to produce Native
Files. Safeway is directed to follow the following portion of the Request ESI
Instructions in its production of responsive documents:
ESI shall be produced in its unaltered native form and as it is
maintained in the ordinary course of business. Such production
shall include .opt load files and .dat files that preserve all
associated metadata. ESI that is not reviewable with ordinary
Microsoft Office software should be produced with instructions
and software necessary to review such ESI. Any production of
ESI must retain all of the attributes of the original files, including
appearance, searchable text, and metadata.
In addition, Safeway must also place a unique Bates number on each Issue
File produced. The parties and the Court must have a way to identify each
document and verify its authenticity. A Bates number is an appropriate way
to meet those requirements. Safeway stated during the parties’
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negotiations that it would number Native Files with a Bates number. It must
Safeway must review the Issue Files to identify the responsive
documents. A party must make reasonable inquiry and certify that
discovery is complete and responsive. Fed. R. Civ. P. 26(g)(1). Under the
facts of this case, Safeway’s key number search alone was not a
reasonable inquiry under Rule 26(g). Safeway states that it is now
reviewing the Issue Files through its TAR system. The Court hereby orders
Safeway to conduct and complete its TAR review process to identify
responsive files by Friday, March 16, 2018. The Court orders Safeway to
produce responsive Issue Files in the manner called for in this Opinion,
including a unique Bates number on each document, by Friday, March 23,
Safeway must also produce the PDX Data. Safeway says that it will
produce these documents by March 28, 2018. Proctor wants the files now.
Safeway has had more than a year to respond to this request. The Court
orders Safeway to produce the PDX Data by Friday, March 16, 2018.
The Court denies Safeway’s request for an order imposing its
documents production costs on Proctor. The Court did not order Safeway
to produce Image Files so the primary basis for the request is moot.
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THEREFORE, IT IS ORDERED that Relator Thomas Proctor’s
Motion to Compel (d/e 95) is ALLOWED in part.
ENTER: March 8, 2018
s/ Tom Schanzle-Haskins
UNITED STATES MAGISTRATE JUDGE
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