Case Law: Moore, II v. Shands Jacksonville Med. Ctr., Inc.

Court Denies Request for Reproduction Citing Parties’ Failure to Confer in Good Faith

Moore, II v. Shands Jacksonville Med. Ctr., Inc., 2010 WL 5137417 (M.D. Fla. Dec. 10, 2010). In this employment discrimination litigation, the plaintiffs moved to compel discovery responses including the reproduction of video surveillance footage. The defendants initially produced DVDs containing the responsive footage; however, the plaintiffs were allegedly unable to view the content without access to a particular type of media software. When informed by the defendants that the necessary software was freely available on the Internet, the plaintiffs claimed they were “insulted” and that accessing the program was not feasible and would cause undue hardship. Arguing the “DVDs were rigged,” the plaintiffs sought reproduction. An unsympathetic court noted the plaintiffs failed to specify the format prior to production and did not attempt to confer in good faith to resolve the issue before seeking relief. Accordingly, the court denied the plaintiffs’ motion as it related to reproduction of the surveillance footage, but ordered production of additional responsive video footage.

Commentary

Similar to Brinckerhoff v. Town of Paradise this case involved a production dispute related to the provisions in Federal Rule of Civil Procedure 34(b). One of the more litigated rules of the 2006 ediscovery amendments, parties continue struggle with production format issues. Significantly, in a large portion of these cases, the parties did not undertake efforts to meet and confer to discuss production format prior to producing, which courts often find would have been of notable help in preventing or resolving the dispute prior to seeking relief in the courtroom. Indeed, in the case summarized above, the court denied the plaintiffs’ motion seeking reproduction citing their failure to make any attempt to meet and confer to discuss the issue with the defendants. Based on that failure, the court determined the defendants’ production was in a reasonably usable form in compliance with Fed.R.Civ.P. 34(b). Parties could avoid many of the headaches and costs associated with litigating these types of disputes by simply meeting with the opposing party prior to undertaking these ediscovery efforts. Counsel should arrive at the meet and confer prepared to discuss what formats they plan to produce in and should make a solid attempt to reach agreement with the other side. Undertaking these cooperation efforts will also help with future arguments to the court in case disputes do arise.