Supreme Court Rules on Format for Producing ESI

There are few, if any, remaining commercial disputes that do not involve electronic communication of some type.  When producing those communications, in what format must they be produced?  The Supreme Court of Nevada addressed that topic last week.

The facts of MEI-GSR Holdings, LLC v. Peppermill Casinos, Inc. are highly entertaining.[1]  Apparently Peppermill was aware one of its employees was improperly accessing slot machines at competing casinos to determine their par values, meaning “the theoretical percentage of money retained by the casino for each slot machine played.”  Peppermill was ok with that.  The employee was later caught, the Nevada Gaming Control Board (“NGCB”) investigated, and fined Peppermill $1,000,000.  Sadly the high drama of commercial espionage had nothing to do with the very dry discovery dispute that generated this post.

GSR sent a request for production for “all emails obtained by NGCB in its investigation of Peppermill.”  The parties eventually “negotiated the production of the requested emails, and ultimately agreed to develop a word-search protocol to locate relevant emails for production. However, the parties failed to agree on common search terms.”  Peppermill then informed “GSR that it had compiled the requested emails and transferred them onto a computer located at Peppermill’s counsels’ office for GSR’s inspection.”  There were some conditions on the inspection that are irrelevant to my discussion, but the district court overruled GSR’s objections to the conditions, “finding that Peppermill satisfied its burden of production in response to GSR’s production request.”

GSR argued on appeal that Peppermill did not satisfy NRCP 34(b)(2)(E)(i), “which provides that documents or electronically stored information must be produced “as they are kept in the usual course of business.” In particular, GSR argues that it was entitled to a copy of the emails in their electronic format as a whole. We disagree.”  First, the rule did not require Peppermill to produce the documents as GSR argued.  The language in the case law GSR cited, “when considered in context, provides that when a party decides to produce documents in their electronic format, the files should not be converted or altered to maintain that they are produced as kept in the usual course of business.”

GSR then argued that Peppermill should have produced the emails in an electronic format.  The argument failed because GSR’s “request for production failed to specify a form for Peppermill to produce the emails.  …  In light of GSR’s failure to specify a form, we conclude that Peppermill produced the electronically stored information in a reasonably usable form.”  “In particular, Peppermill retrieved the email files through an external hard drive, formatted the files to preserve the email directories and Outlook structure, and then transferred the files onto a computer to be made available for GSR’s inspection for a 4-month period.”  The Court also rejected GSR’s argument that the form in which the emails were produced was unduly burdensome because “its asserted difficulty in reviewing the emails was due, in part, to its broad discovery request.”

Details matter; draft requests for production that can be enforced if needed rather than generic, overly broad, and objectionable requests.

[1] 134 Nev. Adv. Op. 31 (2018).