Subpoenaed Database Info Must Be Searchable/Sortable (On Request)
A California appellate court decision instructs that under California Code of Civil Procedure section 1985.8, if asked to do so, subpoena recipients must translate database information into a “reasonably usable form.” In Vasquez v. California School of Culinary Arts, Case No. B250600 (2d Dist. August 27, 2014), over 1000 students sued the school for fraud alleging, among other things, that the school misrepresented student loan repayment information and post-graduation employment prospects. During discovery, the students subpoenaed student loan records from Sallie Mae. The lender responded that it would comply with the subpoena if the plaintiffs agreed to pay over $60,000 in costs, including copy charges and clerical time. Sallie Mae relied on California Evidence Code 1563(b), which states that if records are subpoenaed from non-parties, reasonable costs may be charged to litigant requesting the records. When faced with the $60,000 bill, the students served a second subpoena limiting their request to electronically stored information (ESI) relating to 44 specific data fields in the student loan database. The second subpoena requested production of the information on “digital data disk(s) in a reasonably usable form, i.e., in a format that is electronically searchable and sortable.”
Sallie Mae refused to respond to the second subpoena and moved to quash it arguing that the subpoena sought irrelevant information already possessed by the students and improperly imposed an affirmative duty to produce something other than existing documents and records. Specifically, Sallie Mae contended that the second subpoena improperly required it perform research, “implement information technology programming,” and create a spreadsheet. In response, the students acknowledged their obligation to pay reasonable costs incurred by Sallie Mae to comply with the subpoena, but also noted that Code of Civil Procedure section 1985.8 required Sallie Mae to produce the information in a digital, searchable format as requested in the subpoena.
Both the trial and appellate courts denied the motion to quash. The court of appeal noted that section 1985.8 permitted the students to specify the digital production format and that “if necessary, the subpoenaed person, at the reasonable expense of the subpoenaing party, shall, through detection devices, translate any data compilations, included in the subpoena into a reasonably usable form.” Seeking guidance from federal case law, the California appellate court rejected Sallie Mae’s position that the students’ request for certain data fields contained in a database required the lender to do something other that produce records already in existence. Citing Gonzales v. Google, Inc., 234 F.R.D. 674 (N.D. Cal. 2006), the court noted that even if the information existed in paper format, Sallie Mae still had to produce it in electronic form. The court noted under federal case law, “a nonparty cannot avoid complying with subpoena seeking electronically stored information on the ground that it must create new code to format and extract that information from its existing systems.” The court pointed out that Sallie Mae did not contend that it could not extract the requested information from its databases and that the students were willing to pay the costs associated with compiling the data.
As the Vasquez opinion points out, the students requested information that Sallie Mae possessed and therefore, did not have to create new data. However, despite the holding in Google v. Gonzalez, practitioners should note that courts, especially federal courts, generally will not require creation of documents not already existence. As explained in a prior post, most court rules obligate parties to produce documents in a single format and do not require the creation of new documents. Also worth noting is that the attorneys in Vasquez representing the students wisely limited their request to only certain data points. Databases often contain large amounts of information that is simply not relevant to a lawsuit and may be burdensome on all parties if collected and produced. That is why blanket requests for all information in a database may not be advisable. When dealing with cases involving databases, parties should work together to identify what information in the database is actually relevant and agree on a method to produce the information in an efficient fashion.
