Top 5 Ediscovery Case Summaries - November 2013: California: Producing Over 200,000 Unsearchable TIFFs Not Enough to Warrant Default Judgment


Kwan Software Eng’g v. Foray Techs, LLC, 2013 WL 5487421 (N.D. Cal. Oct. 1, 2013).

In this case, the plaintiff motioned for a default judgment cued to the defendant’s untimely and inadequate production. The plaintiff’s first request for production was served in December 2012, and the parties engaged in numerous discovery disputes regarding the defendant’s production until August 2013, when the court ordered the defendant to complete its production. In response to this order, the defendant eventually produced nearly 230,000 pages of documents in non-searchable TIFFs without any of the associated metadata. In its analysis, the court invoked its ability to order sanctions when a “party ‘fails to obey an order to provide or permit discovery,” but noted that default was a “harsh penalty that should only be imposed in extreme circumstances.” To determine the propriety of default in this matter, the court considered five factors: (1) the public interest in expeditious resolution; (2) the court’s interest in managing its time and resources in managing its docket; (3) the risk of prejudice to the other party; (4) public policy concerns; and (5) the availability of less drastic sanctions. Additionally, the court noted that the party violating the court’s order must do so willfully or in bad faith to justify terminating sanctions. Weighing those factors, the court relied heavily on factor five, and concluded that although the plaintiff’s ability to review documents in compliance with discovery deadlines was undermined, the prejudice suffered was not severe enough to justify case-terminating sanctions. Thus, the court denied the motion for default judgment and instead ordered the defendant to produce its entire discovery within a week in searchable formats with associated metadata.


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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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