(Maksym Yemelyanov – Fotolia)
A party asked to produce remotely stored emails in “native format” should do more than just forward them to preserve the original data, a federal judge has held, but declined to hold the party in contempt for failing to do so.
The opinion explained the reasoning behind an order Torres gave from the bench in January.
While Torres’s order set forth her findings on how to respond to a request for emails in native format, it did not require such emails to be produced because the underlying discovery dispute is part of an arbitration proceeding. The order merely denied the parties’ motions against each other for contempt and sanctions.
The dispute stems from a pending $17 million arbitration proceeding initiated by Bryan Sexton, an early investor in an international online poker site, Red Star Poker. Sexton alleges that he was frozen out of the venture after his initial investment.
During the arbitration, Sexton served a subpoena on another early investor, Canadian hockey player Vincent Lecavalier, asking him to produce some emails in “native format,” or the format in which they were originally created.
However, the emails in question were sent through Google Inc.’s Gmail service, and were therefore not created or stored by Lecavalier. Instead they were created and stored on Google’s servers. Such remotely stored user information is colloquially said to be stored in “the cloud.”
Lecavalier responded to the subpoena by forwarding the emails, but said he could not produce them in native format. Sexton then filed a motion for contempt against Lecavalier in the Southern District. Lecavalier, in turn, moved for sanctions against Sexton, arguing that the motion was frivolous.
Torres noted that there was no clear standard for how to produce documents stored in the cloud in “native format,” but said that Lecavalier could have produced them in a way that preserved their associated metadata—that is, information about the emails themselves in addition to their contents.
“The difficulty in this case arises from the fact that the subpoena calls for the production of files located in the ‘cloud’ and stored with a third-party e-mail provider,” Torres wrote. “Although defendant may lack access to the files as they originally exist on Google’s servers, this does not absolve him of his obligation to produce documents in a reasonably usable format.”
“In contrast to simply forwarding e-mails as defendant did in this case, there are accepted e-discovery practices which better preserve the properties and metadata associated with native e-mail files,” Torres continued.
For example, she said, a file that preserved metadata “can be generated through an e-mail client like Microsoft Outlook or through e-discovery collection software.”
However, Torres denied the motion for contempt, saying the parties should have been able to agree on how best to respond to the subpoena by talking directly with each other, rather than going straight to litigation.
“Rather than sort out their technological differences, however, the parties consumed valuable judicial resources while speaking past one another and now seek to impose penalties on one another,” she said. “This is not acceptable.”
She said that contempt is not warranted because of Lecavalier’s “apparent good-faith belief” that he could not respond to the subpoena as it was served.
Similarly, Torres said that Lecavalier had not shown that Sexton filed his motion without a colorable basis and in bad faith, and so denied the motion for sanctions.
According to Leslie Trager, who represents Sexton, Lecavalier did not produce the emails in another format after the contempt motion was denied, and the arbitration proceeding continued. The parties are now waiting for a result, he said.
Lecavalier is represented by Jonathan Greystone, a member of Spector Gadon & Rosen, who could not be reached.