TEAM MARKETING USA CORP v. ENERGY BRANDS INC (2010)

In this breach of contract case, plaintiff moves to compel production of prior e-mail discovery responses from defendant Spark in native format.   Defendant Spark opposes the motion.

First, the Court notes that the discovery demands that requested the e-mails are not included in plaintiff's motion as an exhibit.   Plaintiff argues that the CPLR requires production of the e-mails as they are kept in the regular course of business, which in the case of Spark is in PST format.   Defendant Spark argues that the discovery demands did not specify that documents be produced in any particular format and that PDF format, the format of the document responses, is permissible.

The Court finds that because plaintiff did not specifically request production in a certain format, defendant Spark is not required to reproduce the e-mails in question under the circumstances.   While plaintiff may have requested documents “in the form and in the same order which in each file in which they existed prior to production,” the Court does not find that this general reference was a requirement for Spark to produce the requested documents in native electronic format versus PDF format.   Under the circumstances, specifically the failure of plaintiff to specify a particular format or electronic format and the fact that documents were already produced by Spark in a reasonably usable format, the Court will not require defendant Spark to reproduce the records in question in a different format (see, e.g., Guidelines for Discovery of Electronically Stored Information (“ESI”), New York State Supreme Court, Commercial Division, Nassau County;  Aguilar v. Immigration & Customs Enforcement Div., 255 F.R.D. 350, 357 [S.D.N.Y.2008] ).   Additionally, the Court notes that it would not be permissible under the circumstances for plaintiff to serve a new demand requesting production of the same documents in a different format.

Accordingly, it is

ORDERED, that plaintiff's motion is denied.

This constitutes the Decision and Order of the Court.   This Decision and Order is returned to the attorneys for the defendant Spark.   All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk.   The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220.   Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

Papers Considered:

Notice of Motion dated September 24, 2010;  Affirmation in Support of Richard S. Sklarin, Esq. dated September 24, 2010;  together with Exhibits “A” through “C”;

Affirmation in Opposition to Team Marketing USA, Corp.'s Motion to Compel of Carl W. Oberdier, Esq. dated October 6, 2010;

Reply Affirmation of Richard S. Sklarin, Esq. dated October 15, 2010;  together with Exhibit “A”.

HENRY F. ZWACK, J.