Bills v. Kennecott Corp.

108 F.R.D. 459, 40 Fair Empl. Prac. Cas. (BNA) 1182, 1985 U.S. Dist. LEXIS 15310, 42 Empl. Prac. Dec. (CCH) 36,732
CourtDistrict Court, D. Utah
DecidedOctober 3, 1985
DocketCiv. No. C83-1314G
StatusPublished
Cited by11 cases

This text of 108 F.R.D. 459 (Bills v. Kennecott Corp.) is published on Counsel Stack Legal Research, covering District Court, D. Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bills v. Kennecott Corp., 108 F.R.D. 459, 40 Fair Empl. Prac. Cas. (BNA) 1182, 1985 U.S. Dist. LEXIS 15310, 42 Empl. Prac. Dec. (CCH) 36,732 (D. Utah 1985).

Opinion

MEMORANDUM DECISION DENYING DEFENDANT’S MOTION FOR CERTAIN DISCOVERY COSTS

J. THOMAS GREENE, District Judge.

This matter came on regularly for hearing on August 27, 1985, on defendant Kennecott Corporation’s Motion for Payment of Certain Discovery Costs. James M. Elegante appeared on behalf of defendant Kennecott Corporation and Rick J. Sutherland appeared on behalf of the plaintiffs. Counsel for Kennecott Corporation filed a memorandum of law with the Court and all parties presented oral argument, after which the Court took the matter under advisement. The Court denies the defendant’s Motion and hereinafter sets forth its reasoning.

FACTUAL BACKGROUND

Plaintiffs in this action were salaried employees of defendant Kennecott Corporation and were terminated in 1982 as part of a reduction in Kennecott’s work force. Plaintiffs allege that Kennecott terminated them because of their age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.

During the course of discovery, plaintiffs sought production of documents containing detailed particular information regarding numerous employees at Kennecott’s Utah operations. The defendant did not move for a protective order under Rule 26(c) of the Federal Rules of Civil Procedure and did not contest the relevancy of the information sought. In order to provide plaintiffs with the data in usable form, defendant offered to supply the plaintiffs with either a computer tape or a printout of the computer data at the plaintiffs’ choice, but only on the condition that plaintiffs pay the cost to generate the information. Counsel for plaintiffs advised Kennecott that they preferred the printout of the computer data, but that they would not pay the costs unless the Court ordered them to do so. Kennecott produced the data and then moved this Court for an order requiring plaintiffs to pay the cost incurred in producing the computer printout, which, by affidavit, amounts to $5411.25. We consider this matter equivalent to the determination which should be made if a Motion for Protective Order on the sole ground of cost and expense had been made.

Defendant asks this Court to exercise its discretion under Rule 26(c) of the Federal Rules of Civil Procedure to protect the defendant from undue expense, claiming that the cost of producing the requested information is a “special attendant cost” for which the defendant is entitled to reimbursement. Defendant also argues that plaintiffs are not being asked to spend any more than they would have spent had such information been kept only manually under older and less accurate systems of record keeping. Formerly, such data was kept by a manual record keeping system, and the Court infers that under such a system the defendant would have provided the plaintiffs access to the records pursuant to Rules 33(c) and/or 34(a) of the Federal Rules of Civil Procedure for their own inspection which would have been less accurate and may have cost the plaintiffs considerable time and expense to obtain the same information. Defendant asks the Court not to consider the relevance of the information sought or the relative abilities of the parties to withstand the expense in exercising its discretion, but the Court considers these matters to be among the factors which properly bear upon exercise of discretion, as is set forth hereinafter.

[461]*461COMPUTER-STORED INFORMATION

In recent years, the question of the discovery of computer-stored information has received significant judicial attention. In the last fifteen years, computerized record keeping has rapidly replaced the less accurate manual systems, and it is no wonder that computer-stored information has become involved in every type of litigation. In 1970, Rule 34 of the Federal Rules of Civil Procedure was amended to make it clear that discovery of the magnetic and electronic impulses involved in computer-stored information was appropriate. The Rule states:

(a) Scope. Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on his behalf, to inspect and copy, any designated documents (including writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations from which information can be obtained, translated if necessary, by the respondent through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the custody or control of the party upon whom the request is served____

Referring to the 1970 amendment, the Advisory Committee expressed its purpose and scope:

The inclusive description of “documents” is revised to accord with changing technology. It makes clear that Rule 34 applies to electronic data compilations from which information can be obtained only with the use of detection devices, and that when the data can as a practical matter by made usable by the discovering party only through respondent’s devices, respondent may be required to use . his devices to translate the data into usable form. In many instances, this means that respondent will have to supply a printout of computer data. (Emphasis added)

It is now axiomatic that electronically stored information is discoverable under Rule 34 of the Federal Rules of Civil Procedure if it otherwise meets the relevancy standard prescribed by the rules, although there may be issues in particular cases as to the form of what must be produced. See e.g., Fauteck v. Montgomery Ward & Co., 91 F.R.D. 393 (N.D.I11.1980). Indeed, some courts have required the responding parties to develop programs to extract the requested information and to assist the requesting party in reading and interpreting information stored on computer tape. See, e.g., National Union Electric Corp. v. Matsushita Electric Industrial Co., 494 F.Supp. 1257 (E.D.Pa.1980). Depending on the type of case, a Court might even permit discovery of computer capabilities and capacities. See Dunn v. Midwestern Indemnity, 88 F.R.D. 191 (S.D.Ohio 1980). The Federal Judicial Center has recognized the challenge presented to discovery processes in the computer age:

In many instances it will be essential for the discovering party to know the underlying theory and the procedures employed in preparing and storing the machine-readable records. When this is true, litigants should be allowed to discover any material relating to the record holder’s computer hardware, the programming techniques employed in connection with the relevant data, the principles governing the structure of the stored data, and the operation of the data processing system.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cahoo v. SAS Inst. Inc.
377 F. Supp. 3d 769 (E.D. Michigan, 2019)
Anderson Living Trust v. WPX Energy Production, LLC
298 F.R.D. 514 (D. New Mexico, 2014)
W Holding Co. v. Chartis Insurance
293 F.R.D. 68 (D. Puerto Rico, 2013)
LightGuard Systems, Inc. v. Spot Devices, Inc.
281 F.R.D. 593 (D. Nevada, 2012)
John B. v. Goetz
879 F. Supp. 2d 787 (M.D. Tennessee, 2010)
Semsroth v. City of Wichita
239 F.R.D. 630 (D. Kansas, 2006)
Medtronic Sofamor Danek, Inc. v. Michelson
229 F.R.D. 550 (W.D. Tennessee, 2003)
Santiago v. Miles
121 F.R.D. 636 (W.D. New York, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
108 F.R.D. 459, 40 Fair Empl. Prac. Cas. (BNA) 1182, 1985 U.S. Dist. LEXIS 15310, 42 Empl. Prac. Dec. (CCH) 36,732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bills-v-kennecott-corp-utd-1985.