In Ediscovery, Writing a Program to Analyze Data Isn’t the Same as Producing New Data

Meredith v. United Collection Bureau, Inc., No. 1:16 CV 1102, 2017 U.S. Dist. LEXIS 56783 (N.D. Ohio Apr. 13, 2017).

In this proposed class action, the court granted the plaintiff’s motion to compel the production of data that would help define the class of potential plaintiffs. In doing so, the court rejected the defendant’s argument that writing a program to analyze its database would violate the federal rules, which don’t require producing new data.

The plaintiff, Deborah Meredith, alleged that the defendant, United Collection Bureau (“UCB”), autodialed her cell phone repeatedly and without her consent to collect a debt. Meredith filed this potential class action alleging multiple violations of the Telephone Consumer Protection Act.

To identify the full class of prospective plaintiffs, Meredith requested that UCB produce data about recipients of “‘wrong number’” calls. UCB objected, arguing that it would have to manually review more than 278,000 accounts to provide that information. In a later deposition, UCB’s Chief Technology Officer acknowledged that the company could write a program to identify wrong number calls in its database.

After the deposition, Meredith proposed three ways for UCB to produce the data. First, UCB could write its own program to find the wrong number calls. Second, UCB could share part of its database with Meredith so that her expert could write the program. Or third, UCB could forgo the search if it agreed that there were too many plaintiffs to name each individually.

When UCB rejected all three of Meredith’s requests, Meredith filed a motion to compel.

The court began its analysis by noting that the scope of discovery is “quite broad” under Federal Rule of Civil Procedure 26(b)(1). The information Meredith sought fell within that scope because it was relevant “to establishing the size and nature of the class” that she intended to include in her case.

UCB objected that Rule 34 “limits the production” of data to how “it is ‘kept in the usual course of business.’” UCB argued that creating a program would require it to produce new data that it usually does not keep. Writing a program would also take time and could hamper UCB’s “ability to conduct its business.” Notably, UCB offered no counterproposal for how Meredith could identify the prospective class members.

The court rejected UCB’s arguments. It noted the long-standing rule that “defendants may be required … to create computer programs to search an existing database for relevant information.” The court distinguished writing a program from “creat[ing] completely new documents,” which the rules would not require. The court dismissed UCB’s concerns about the time required to write the program. It observed that parties must provide discovery “even where it would take many days to produce the data.”

Because the information Meredith requested was “relevant and necessary to her claim,” its benefit outweighed any production burden on UCB. The court gave UCB two options. First, it could write a program to produce data about the potential plaintiffs. To minimize any disruption to its business, UCB could run the program during off hours. Second, it could provide the database to Meredith so her expert could write the program.

Takeaways on requesting ediscovery data

When you request a specific type of information in discovery, suggest alternative ways that your opponent could provide the same information. Here, Meredith offered three reasonable options for how UCB could either produce data or move forward without it. UCB’s rejection of those options, without any alternative proposal, may have influenced the court to summarily dismiss its arguments.

Also, your arguments must be factually supported. Here, UCB suffered because of the disparity between its initial argument — that a manual search was the only way to identify wrong number calls — and its witness’s testimony.

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