On November 30, 2012, however, Wettick entered another order, requiring Norfolk Southern to turn over the video and the RailView software within 60 days.
On January 22, about a week ahead of its deadline, Norfolk Southern complied with the order, according to Goodheart.
As of press time, Norfolk Southern's original appeal of Wettick's September 7, 2012, order granting the plaintiffs' motion to compel was still pending before the Superior Court.
Goodheart said he's unsure what that means now that Norfolk has complied with the order, however.
Leonard Deutchman, general counsel and administrative partner of LDiscovery, said that while it's routine for discovery materials to require specific software — for example, Intuit QuickBooks files — the unique aspect of this case is that the proprietary software at issue was owned by the opposing party.
While widely used products like QuickBooks and even Microsoft Windows are technically "proprietary," Deutchman said the term is typically reserved in e-discovery to describe technology that is expensive and available to very few people.
"Nobody would grant this motion if it was QuickBooks," Deutchman said. Deutchman writes an e-discovery column for the Law Weekly.
Goodheart told the Law Weekly he has never encountered another instance in which discoverable video or similar technology was set up the way Norfolk Southern's footage was.
"Rather than technological advances making discovery of this type of material more difficult, it should actually make it much easier," Goodheart said.
Norfolk Southern's attorney, Scott D. Clements of Pion Johnston in Pittsburgh, could not be reached for comment.
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