This Sidley Update addresses the following recent developments and court decisions involving eDiscovery issues:
- a decision from the U.S. District Court for the Southern District of Texas compelling the Plaintiff to produce dashboards generated by its business analytics software platform
- an order from the U.S. District Court for the District of Vermont requiring Defendants to comply with the organizational requirements of Federal Rule of Civil Procedure 34
- a ruling from the U.S. District Court for the District of Utah deferring a motion for sanctions until trial where resolution of the motion required weighing competing evidence and was intertwined with issues of fact and credibility that would be decided by the jury at trial
- an opinion from the U.S. District Court for the Northern District of Texas denying a motion for sanctions based on a party’s failure to produce computer scripts
In this lawsuit concerning the construction of an ammonia production facility, Plaintiff alleged that it was not paid for various construction services at the facility. Id. at *1. Defendant counterclaimed, arguing that Plaintiff’s work was defective and caused delays. In discovery, Defendant requested all versions of Plaintiff’s “Power BI dashboards or project dashboards.” Magistrate Judge Edison explained that Power BI is a “data visualization software that generates visual representations of data from external sources” and “presents information in a visually appealing format concerning a project’s progress.”
Plaintiff opposed the request for dashboards related to work performed at the facility on the grounds that the dashboards were “software, not a document” and therefore not subject to production under the Federal Rules. Plaintiff also argued that the Federal Rules did not require it to “generate, create, or produce a document not already in existence.”
Magistrate Judge Edison began his analysis by explaining that “parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Id. (citing Rule 26(b)(1)). He also explained that Rule 34(a)(1)(A) provides for the discovery of “documents or electronically stored information — including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations.”
Turning to Plaintiff’s objections to production, Magistrate Judge Edison first addressed whether the dashboards were subject to discovery under Rule 34. He noted that Rule 34 was amended in 1970 to add “data compilations” to the list of discoverable documents, but he explained that “there was no suggestion that ‘data compilations’ was intended to turn all forms of ‘data’ into a Rule 34 ‘document.’” He quoted from The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production (Sedona Conference Working Group Series 2004) for the proposition that a “document” can consist of “[d]ata that can be readily compiled into viewable information, whether presented on the screen or printed on paper” but may not include “data used by a computer system but hidden and never revealed to the user in the ordinary course of business.” Id. at *2.
Based on this guidance, Magistrate Judge Edison concluded that the dashboards were discoverable under Rule 34 because they contained “data that is easily compiled into viewable information.”
Magistrate Judge Edison next concluded that Defendant’s request was appropriate under Rule 34 because the request did not require Plaintiff to create documents. Magistrate Judge Edison explained that “there is a critical distinction between creating new documents and requiring a party to query an existing database to produce reports for opposing parties.” In addition, he noted that while “a party should not be required to create completely new documents, that is not the same as requiring a party to query an existing dynamic database for relevant information.” He found that Defendant was “simply asking [Plaintiff] to extract information from its computer system” and not “engaging in an impermissible effort to have [Plaintiff] create a new document.”
Finally, Magistrate Judge Edison held that the dashboards were sufficiently relevant to merit production. Id. at *3. Plaintiff argued that the dashboards were “highly susceptible to manipulation” and did not provide “an accurate representation of any overall Project metrics,” but Magistrate Judge Edison noted that Plaintiff’s “management occasionally utilizes the dashboards in its business operations.” He therefore concluded, “[g]iven the low bar of relevance at this discovery stage,” that the dashboards could be probative of whether Defendant affected Plaintiff’s productivity on the project, which was a “central issue in this case.”
Magistrate Judge Edison held that Defendant’s request for the dashboards was “an effort to expediently and economically obtain from [Plaintiff] certain exemplar reports about relevant data in [Plaintiff]’s possession.” Accordingly, Magistrate Judge Edison ordered Plaintiff to “produce the dashboards that would reflect the status of the end of its work on the project” and ordered the parties to meet and confer regarding the production of dashboards for other dates.
Plaintiffs in this litigation were current and former students at the University of Vermont (UVM) alleging that they were sexually assaulted while at UVM. Id. at *1. In discovery, Plaintiffs claimed that Defendants failed to identify which produced documents were responsive to Plaintiffs’ individual requests for production. Id. at *4. Claiming that Rule 34(b)(2)(E)(i) required Defendants to “produce documents as they are kept in the usual course of business or organize and label them to correspond to the categories” in Plaintiffs’ requests, Plaintiffs filed a motion to compel Defendants to produce a log indicating which produced documents were responsive to which requests.
Although Defendants conceded that they did not organize or label their document productions to correspond to categories in Plaintiffs’ requests, they suggested such an undertaking would be a “meaningless exercise in busy-work” that is “not required by the Rules” because Defendants produced files “in fully text searchable format, as PDF files accompanied by load files containing key metadata.” Id. at *5. Defendants argued that this format complied with Rule 34(b)(2)(E) because the documents Defendants had produced “are largely self-explanatory” and were produced in a “reasonably usable form.”
Judge Sessions agreed with Defendants that they were not “required by the Rules to organize and label documents to correspond to requests.” But he also concluded that Defendants’ productions failed to comply with Rule 34. He explained that Rule 34 allows a producing party to organize and label their productions or produce documents as they are kept in the usual course of business. Judge Sessions noted that “[t]he key to this dichotomy is the assumption that in either case the documents will be organized — that records kept in the usual course of business would not be maintained in a haphazard fashion.”
Judge Sessions made a distinction in this regard between Rule 34(b)(2)(E)(i) governing the organization of produced documents and Rule 34(b)(2)(E)(ii) governing the format of productions. Based on this distinction, Judge Sessions disagreed with an argument from Defendants that the producing party can choose the form of production. Judge Sessions noted that Plaintiffs were not complaining about Defendants’ production format. But Rule 34(b)(2)(E) “require[s] that production of electronically stored information either be organized in a comprehensible way or include guidance on how to locate desired information.” Quoting from Wright & Miller, Judge Sessions further explained that “[t]his requirement was added to the rule to guard against risks that a producing party might attempt to rearrange materials to obscure the importance of certain items.”
Accordingly, Judge Sessions held that if Defendants did not choose to organize and label documents as responsive to specific requests going forward, they would have to produce the documents organized as they were on Defendants’ systems.
Plaintiffs filed this action for alleged false and misleading statements made by Defendants about stock options in Nikola Corporation that were used to purchase a ranch property in Utah. Id. at *1.
During discovery, Defendants asked Plaintiffs to produce communications between Plaintiff Peter Hicks and his son, Lucas Hicks, relating to the property transaction. Id. at *2. Defendants separately served a subpoena on Lucas Hicks, also requesting communications between Lucas Hicks and Peter Hicks. In response to Defendants’ request, Plaintiffs stated that Peter Hicks could not produce “text messages between Peter Hicks and Lucas Hicks exchanged prior to 2021, because Plaintiffs do not possess those text messages.” Plaintiffs claimed that Peter Hicks “changed his phone and, in the process, lost text messages exchanged with Lucas” Hicks.
Defendants filed a motion to compel additional text messages and for a forensic examination of Plaintiffs’ electronic devices and email accounts, arguing that discovery from the subpoena to Lucas Hicks showed that Plaintiffs’ production was incomplete. In an earlier decision, the court had granted Defendants’ motion and ordered Plaintiffs to produce their devices for forensic examination, “based on discrepancies between the documents produced by Peter Hicks and Lucas Hicks, as well as Plaintiffs’ claim that certain responsive text messages are no longer available on Peter Hicks’ phone.”
The forensic evaluation of Peter Hicks’ phone discovered that there were no texts on the phone between Peter Hicks and Lucas Hicks between April 8, 2020, and March 2, 2021, despite the fact that Lucas Hicks had produced responsive texts from that time period. Id. at *3. In a subsequent deposition, Peter Hicks testified that those messages could have been lost when he replaced his phone after dropping it on the beach.
Defendants filed a motion for sanctions, arguing that Peter Hicks intentionally deleted his texts with Lucas Hicks before March 5, 2021. In support of their motion, Defendants submitted an expert report from Scott Tucker, who opined that Peter Hicks’ explanations regarding his lost texts were “implausible.” Defendants also argued that the loss of the text messages was prejudicial because texts produced by Lucas Hicks showed that Peter Hicks was aware of information in SEC filings about Nikola Corporation. In response, Plaintiffs argued that Defendants did not have evidence that Peter Hicks deleted any texts intentionally or in bad faith and that there was no showing of prejudice because Defendants recovered the missing text messages from the production made by Lucas Hicks. Id. at *3-4.
Magistrate Judge Oberg denied Defendants’ motion for sanctions without prejudice, finding that Defendants had not shown that dismissal or an adverse instruction sanction were merited. Id. at *4. She stated that spoliation sanctions are appropriate only if electronically stored information (ESI) “is lost because a party failed to take reasonable steps to preserve it,” it “cannot be restored or replaced through additional discovery,” and the spoliation caused prejudice. But she noted that the parties had presented “competing evidence and testimony as to what was lost and whether any loss caused prejudice, putting these issues squarely within the jury’s ambit.”
Magistrate Judge Oberg also found that the parties had submitted competing evidence as to Peter Hick’s intent with respect to the deletion of his text messages, and “his intent is directly at issue.” Id. at *5. She noted that the sanction of dismissal (or an adverse jury instruction) may be imposed only if Peter Hicks “acted with the intent to deprive another party of the information’s use in the litigation.”
Magistrate Judge Oberg held that the questions of fact involved in Defendant’s motion made the issues “more appropriate for determination by the jury at trial.” She noted that a court may “step into the role of factfinder” for purposes of determining a sanctions motion, but it may also decline to do so where the motion is “intertwined with issues of fact and credibility that will ultimately be decided by the jury at trial.” She found that this was particularly the case because “a determination of whether spoliation occurred and caused prejudice requires weighing competing witness testimony from Peter [Hicks], Lucas [Hicks], and Mr. Tucker — the same testimony the jury must weigh in deciding the merits of this case.” Accordingly, she concluded that “if evidence relating to spoliation is deemed admissible at trial, it may be appropriate to submit this issue to the jury.”
As a result, Magistrate Judge Oberg denied Defendants’ motion for sanctions because “a determination of whether spoliation occurred or sanctions are warranted turns on credibility questions and factual issues more appropriate for determination by a jury.”
4. In Rush Goodson v. Nasco Healthcare Inc., No. 21-CV-01467-N, 2025 WL 2322793 (N.D. Tex. Aug. 12, 2025), Chief U.S. District Judge David C. Godbey addressed whether a computer script was data or metadata subject to production in discovery.
This case arose from a dispute between the parties regarding alleged unpaid commissions. Id. at *1. In discovery, Plaintiff served Defendant with requests for production of “sales data, commissions reports,” and “all ESI relating to such requests.” In a prior order, the court had granted a motion to compel as to these requests. After that order, Defendant permitted Plaintiff and his IT expert, Carlos Vela, to conduct a site visit and directly access Defendant’s data storage systems, which permitted Plaintiff “to extract the requested data and metadata in native format.”
Defendant later took Vela’s deposition, during which Defendant’s counsel used a data extraction “script” in connection with his questions. Id. at *5. Defendant had not produced the script to Plaintiff. As a result, Plaintiff filed a motion for discovery sanctions based on Defendant’s use of an unproduced data extraction script during Vela’s deposition, arguing that Defendant’s failure to produce the script was a violation of the court’s prior discovery order.
Chief Judge Godbey concluded that the use of the script during Vela’s deposition was not a violation of his prior order. He disagreed with Plaintiff’s assertion that the script “could have only come from the metadata” that was the subject of the prior discovery order. Chief Judge Godbey explained that a script “is not itself data or metadata — it is code used to control a software program.” He quoted the definition of the term “script” from Merriam Webster’s dictionary as “a sequence of instructions or commands for a computer to execute; especially: one that automates a small task (such as assembling or sorting a set of data)” and the definition of the term “metadata” from the same source as “data that provides information about other data.”
Chief Judge Godbey noted that Vela appeared to agree with these definitions, where Vela testified that he “would write Sql scripts to extract data from” Defendant’s systems. Based on this shared understanding, Chief Judge Godbey found that the script Defendant’s counsel had used at Vela’s definition was not metadata and was therefore not subject to the prior discovery order. Chief Judge Godbey therefore denied Plaintiff’s motion for discovery sanctions based on nonproduction of the script.
Information on past notable cases and events in eDiscovery can be found here.
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