Kough et al v. Wing Enterprises, Incorporated et al

Filing 70

MEMORANDUM AND ORDER denying 56 Motion to Compel. Signed by Magistrate Judge H Bruce Guyton on 1/13/15. (JBR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
RAYMOND KOUGH and MARY KOUGH,
Plaintiffs,
v.
WING ENTERPRISES, INC., et al.,
Defendants.

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No. 3:12-CV-250-PLR-HBG

MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and Standing Order 13-02.
On January 12, 2014, the parties appeared before the Court to address the Defendant’s
Motion to Compel [Doc. 56]. In the Motion to Compel, Defendant argues that the Plaintiffs
should be ordered to produce additional photographs, in printed format, in response to Requests
for Production Nos. 7, 8, 9, 10, 11, 12, 13, 14, and 15. Plaintiffs respond that Plaintiffs have
produced the photographs that they have to Defendant’s counsel in digital form and they have
also printed photographs for Defendant’s counsel. [Doc. 67]. Plaintiffs maintain that they
should not be ordered to again produce the photographs. Both parties concede that they have
stipulated to the photographs to be used at trial.
As the Court stated on the record at the hearing, the comments to Rule 34 of the Federal
Rules of Civil Procedure offer guidance in this instance. In pertinent part, the comments to the
2006 Amendments state: “If the form of production is not specified by party agreement or court
order, the responding party must produce electronically stored information either in a form or
forms in which it is ordinarily maintained or in a form or forms that are reasonably usable. . . . .

Under some circumstances, the responding party may need to provide some reasonable amount
of technical support, information on application software, or other reasonable assistance to
enable the requesting party to use the information.”
Consistent with Rule 34 and the Court’s findings on the record at the hearing, the Court
FINDS and ORDERS:
1. In this case, the Court finds that production of the photographs in their native digital
format is reasonable and is the form in which such photographs are normally maintained
pursuant to Rule 34 of the Federal Rules of Civil Procedure.
2. With regard to Requests for Production Nos. 7, 8, 9, the Plaintiffs, through counsel, have
represented that Plaintiffs have not taken any such photographs of their home or the scene
of the accident. Defendant’s counsel conceded that he had no basis for doubting the
veracity of this statement. The Court finds that ordering further production with regard to
these Requests for Production is not appropriate.
3. With regard to Requests for Production 10, 11, 12, the Plaintiffs have represented,
through counsel, that they have produced all of the photographs they have in their
possession to Defendant’s counsel in digital form. The Court finds that the Defendant is
entitled to know the date on which the photographs were taken, and Plaintiffs’ counsel
has represented that these electronic photographs are embedded with metadata that
evidence the date on which they were taken. Defendant’s counsel is directed to re-review
the photographs, in their digital format, to determine if the date can be discerned via the
digital photographs. It is the Court’s expectation that, to the extent Defendant’s counsel
is not familiar with metadata, counsel will obtain the appropriate assistance from
someone who is familiar with the manner in which dates can be determined through

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metadata, whether it be his co-counsel or his internal information technology staff. If
Defendant’s counsel is unable to obtain the date information, even with appropriate
assistance, he may call upon the Plaintiff’s counsel to assist him or may contact the Court
for further guidance on this issue.
4. With regard to Requests for Production 13, 14, 15, the Plaintiffs have represented,
through counsel, that no such photographs of Mr. Kough’s injuries exist. Defendant’s
counsel conceded that he had no basis for doubting the veracity of this statement. The
Court finds that ordering further production with regard to these Requests for Production
is not appropriate.
5. Any attempt to later produce photographs in a manner inconsistent with Plaintiffs’
representation to the Court may result in exclusion of the photographs and sanctions as
may be appropriate under the Federal Rules of Civil Procedure.
6. Based upon the foregoing, the Motion to Compel [Doc. 56] is DENIED.
IT IS SO ORDERED.
ENTER:

United States Magistrate Judge

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