The Plaintiff, Dartnell Enterprises, Inc. ("Dartnell") submits this motion seeking an order pursuant to CPLR §§3124 and 3126 granting Plaintiff's motion to compel and preclude against Defendant, Hewlett-Packard Company (as successor-in-interest to Compaq Computer Corporation)("HP") .

This motion was scheduled in a conference on March 24, 2011 where both parties appeared by counsel. At the conference certain aspects of this motion were determined by the Court and/or consented to by counsel. At that conference the Court directed that the privilege log be exchanged within thirty days. The privilege log was provided to the Plaintiff by HP on April 25, 2011. Further it was determined that arbitration correspondence is considered privileged as attorney-client communications and such items do not need to be logged individually. The arbitration exhibits were to be provided to the Plaintiff by the Defendant. The motion as related to electronic data was adjourned for additional submissions.

I.FACTS

This is an action by Plaintiff for violation of Chapter 93A of General Law of Massachusetts for bad faith and tortious interference with prospective business relations related to conduct directed at third parties. The allegations involve a business relationship between the parties (specifically Defendant's predecessors).

Dartnell initiated discovery in this action with Plaintiff's First Request for Documents dated September 15, 2009 ("First Request Docs"). The definitions in the First Request Docs of the term "document" includes "other writings or e-mail or other information created or transmitted by electronic or other means . . .", and states that "[d]ocuments responsive to these requests may include, be comprised of, relate to or otherwise involve electronically-stored information ("ESI")." Further the definition states that "Plaintiff requests that responsive ESI material be produced by the Defendant in its native format." The document requests set forth in the First Request Docs all state "All documents, information and communications (including electronically-stored information "ESI") . . .".

In response to Plaintiff's First Request Docs, HP printed hard copies of electronic documents and e-mails and provided those to the Plaintiff. (There was no index provided indicating which documents were responsive to the document demands and there was no privilege log.)

In December 2009 Plaintiff requested documents from HP be produced in an electronic format. Plaintiff also served "Plaintiff's Revised Request for Documents - For Nos. 6, 9, 11, 13-16, & 21" ("Revised Request") on HP. The documents requested in this Revised Request also states "All documents, information and communications (including ESI)" for the items sought. In May 2010 Plaintiff's served "Plaintiff's Supplemental Request for Documents" ("Supplemental Request").[*2]These requests were very specific:

1. All relevant communications - including emails, correspondence, and ESI-related to HP/Compaq's business and contractual relationship with Dartnell during 1998-2005 by and between: [list of names].

2. All documents, information, data and communications - including emails, correspondence, and ESI- sent from and/or held by, Thomas C. Siekman . . .involving or related to Dartnell, . . .

HP responded to the Supplemental Request with objections as to being protected by attorney-client privilege and other objections.

A Court conference was held via phone in September 2010 to discuss the ongoing discovery disputes. After correspondence between counsel, in October 2010 HP provided copies of two documents in their native format. An index to the Plaintiff's First Request Doc, from September 2009, was provided by HP in November 2010.

The parties discovery has been protracted and contentious.

II.MOTION TO COMPEL AND PRECLUDE

The Plaintiff moves for an order to compel HP to respond to discovery demands of Dartnell by ordering HP to produce its documents in electronic form as kept in the regular course of business; specifically Plaintiff seeks production of HP's electronically stored information in its native format. The opposition of HP consists of setting forth that it has produced voluminous hard copies of documents requested by Dartnell and that the Federal Rules of Civil procedure do not apply. Further that HP agrees to produce any relevant and non-privileged material it has readily available in electronic form.

Initially the Court requires HP, in accordance with its agreement, to produce any relevant and non-privileged material it has available in electronic form.

A.Law

The Plaintiff seeks an order to compel compliance or a response to its discovery requests (CPLR §3124). Plaintiff further requests an order to preclude such items not disclosed (CPLR §3126).

The Court has "broad discretion to regulate the use of any disclosure device" (IMO Judicial Settlement Acct of Tamer, 24 Misc 3d 768 [Surr. Ct., Westchester Cty 2009]; CPLR §3103). In addition, the scope of disclosure in New York is extremely liberal. [*3]

There shall be full disclosure of all matter material and necessary in the prosecution . . . of an action, regardless of the burden of proof, by: (1) a party, or the officer, director, member, agent or employee of the party; . . . .

(CPLR §3101[a]). "In determining whether the material sought through discovery is "material and necessary", the court must determine if the demanded material has any bearing on the issues raised in the case. . . . The test is one of usefulness and reason" (Lipco Electrical Corp. v ASG Consulting Corp., 4 Misc 3d 1019A [Sup. Ct., Nassau Cty, 2004]; 150 Nassau Assoc. LLC v RC Dolner LLC, 30 Misc 3d 1224A [Sup. Ct, NY Cty 2011]). "[C]ourts liberally interpret the phrase "material and necessary" in favor of disclosure" (Mosley v Conte, 2010 NY Slip Op 32424U; 2010 NY Misc. LEXIS 4313 [Sup. Ct., NY Cty 2010]). The general principles related to discovery apply to computer discovery (Mosley at 2010 NY Slip Op 32424U; 2010 NY Misc. LEXIS 4313).

"Raw computer data or electronic documents are discoverable" (Lipco at 1019A; see 150 Nassau at 1224A). "Our courts have authorized the discovery of computer data, electronic documents and computer memory (citations omitted)" (Tamer at 771). Electronic documents are discoverable "even in circumstances where a hard copy' has been provided" (150 Nassau Assoc. at 1224A). "As no specific State statute addresses ESI, courts have interpreted the CPLR "so as to be virtually parallel to the Federal provision" set forth in Rule 34 of the Federal Rules of Civil Procedure (citations omitted)" (Mosley at 2010 NY Slip Op 32424U, 13).

The Appellate Division Fourth Department has stated that "[n]early, every electronic document contains metadata' (citation omitted)" (IMO Irwin v Onondaga County Resource Recovery Agency, 72 AD3d 314 [4th Dept. 2010]). The Court sets forth

a detailed definition of the term metadata for those lacking familiarity with the term. Metadata is "secondary information" not apparent on the face of the document "that describes an electronic document's characteristics, origins, and usage (citation omitted).

(Irwin at 320). The Court goes on to state an extensive list of examples of metadata for electronic documents (Id.). This Fourth Department case addressed an issue related to a FOIL request and specifically states "we do not address the issue concerning whether and when metadata of any nature is subject to disclosure under the CPLR" (Id. 322). However, another court indicates that "[i]t is implicit that where a party seeks electronic discovery, the responding party will produce the information sought by some form of electronic means (Waltzer v Tradescape & Co., L.L.C., 31 AD3d 302, 819 NYS2d 38 [2006])" (Tamer at 771).

B.Analysis

The disclosure requests of the Plaintiff, Dartnell, all specifically include that ESI be provided. Article 31 requires full disclosure of all matter material and necessary, and requires production of [*4]all documents and things requested (see CPLR §3101 & §3120). The Plaintiff has demonstrated that some of the hard copy documents, when obtained in their native electronic format, contained additional relevant, material and necessary information. In the submissions on this motion, the Plaintiff has shown inconsistencies as to the information available from the hard copy and the native electronic format (see 150 Nassau at 1224A). The metadata that was stripped from the documents when printed into a hard copy is appropriate information for disclosure in this action. "Material demanded through discovery that can possibly be used as evidence in chief, for rebuttal or cross-examination must be produced" (Lipco at 1019A). The disclosure requested in its native electronic format is material and necessary in the prosecution of the action.

Article 31 of the CPLR does not prohibit disclosure of electronically stored information. Also, the language of CPLR §3122 does not limit document disclosure to a paper copy (CPLR §3122; see Tamar at 771). The law supports that where Plaintiff requests electronic discovery, such discovery should be produced in an electronic format (CPLR §§3101 and 3122; Tamar at 771).

Documents are to be produced by the person producing them "as they are kept in the regular course of business or shall organize and label them to correspond to the categories in the request" (CPLR §3122[c]). Here the Defendant, HP, provided hard copies of the documents and relies upon CPLR §3122[c] to argue that it has met its duty of disclosure and nothing more is required. Electronic documents in their native language form may be discoverable even when a hard copy has been provided (see 150 Nassau at 1224A). The Defendant, HP has not asserted that the documents requested are "unduly difficult or burdensome to obtain and produce" in their native electronic format, such that the requests should be denied (see Silverman v Shaoul, 30 Misc 3d 491,496 [Sup Ct, NY Cty 2010]; Lipco at 1019A).

The Plaintiff specifically requested in its discovery demands the ESI for all documents. The Defendant has simply chosen to ignore that portion of the disclosure requests. The Defendant has not presented any valid basis or reason for not complying with the disclosure requests in an electronic format. CPLR §3122[c] supports that HP is required to produce the requested documents "as they are kept in the regular course of business" in electronic native format.

Under the Court's broad discretion to regulate the use of any disclosure device, it is determined that HP is required to provide disclosure in the native electronic format.

C.CONCLUSION

The Defendant is required to produce the requested documents in their native electronic format, including any metadata.Also, under the Court's broad discretion, HP must provide an index to the electronic files identifying the document produced in response to each demand (CPLR §3103; see Tamar at 771).

The motion of the Plaintiff, Dartnell, for an order to compel Defendant, HP, to produce the requested documents contained in Plaintiff's discovery requests in their native electronic format, including all [*5]metadata and with an index, is GRANTED. The Defendant, HP shall produce the electronic discovery within sixty (60) days of the date of this Decision and Order.

III.OTHER ISSUES

Although the parties raise other issues in their submitted papers, this application was limited to the Court determining the issue of whether disclosure should be required in its native electronic format. All other matters presented in these motion papers have been addressed in conference and, in the Court's opinion, resolved.

ORDERED that the motion of the Plaintiff, Dartnell Enterprises, Inc., for an order to compel Defendant, Hewlett Packard Company, to produce the requested documents contained in Plaintiff's discovery requests in their native electronic format, including all metadata, is GRANTED; it is further

ORDERED that the Defendant, Hewlett Packard, shall produce the electronic discovery within sixty (60) days of the date of this Decision and Order; and it is further

ORDERED that the Defendant, Hewlett Packard, shall provide an index to the disclosed electronic files which identifies the document and the demand to which such document is responsive.

Dated:September ____, 2011

Rochester, New York

________________________________________

Thomas A. Stander

Supreme Court Justice C:\HTFormat\f5175810.txt