In Meridith v. United Collection Bureau, Inc., 2017 WL 1355696, at *2 (N.D.Ohio, 2017), Judge Gaughan compelled production of class data, and ordered Defendant to write a program to do a program search or make its database available to Plaintiff’s expert so that he could write the program.
The information that Plaintiff seeks is relevant to establishing the size and nature of the class that she wants to represent.1 Defendant does not dispute this, nor has it suggested any other method by which Plaintiff can obtain the information that she requests. Defendant, however, objects to Plaintiff’s request because Rule 34 limits the production of electronically stored information (“ESI”) to the manner in which it is “kept in the usual course of business.” (Doc. 30, at 11) (quoting Fed. R. Civ. P 34). It argues that, by asking it to write a program that does not already exist, Plaintiff is asking for ESI that is not kept in the usual course of business. It also states that writing and testing such a program “would take a few days” and could harm its ability to conduct its business during regular business hours. (Beirdneau Dec. ¶ 4). Should Plaintiff’s expert, Jeffrey Hansen, be allowed to write the program, it questions his ability to do so because its database has been customized and it is not clear that Hansen is familiar with the version of CUBS that Defendant uses. (See Doc. 41, Evidentiary Objections to Declaration of Jeffrey A. Hansen in Support of Plaintiff’s Motion to Compel). The Court is not persuaded by Defendant’s objection that the information Plaintiff seeks requires it to produce ESI in a manner in which it is not normally kept. Courts have long recognized that defendants may be required under the Federal Rules to create computer programs to search an existing database for relevant information. See Anti-Monopoly, Inc. v. Hasbro, Inc., 1995 WL 649934, at *2 (S.D.N.Y. Nov. 3, 1995) (“The law is clear that…the producing party can be required to design a computer program to extract the data from its computerized business records, subject to the Court’s discretion as to the allocation of the costs of designing such a computer program.”). For example, in Apple Inc. v. Samsung Electronics Co. Ltd., the court noted: “[w]hat emerges from the parties’ arguments is that Apple does have financial databases that it could query to generate at least some of the reports sought by Samsung. While this court has held that a party should not be required to create completely new documents, that is not the same as requiring a party to query an existing dynamic database for relevant information. Courts regularly require parties to produce reports from dynamic databases, holding ‘the technical burden…of creating a new dataset for the instant litigation does not excuse compelling production.’ ” 2013 WL 4426512, at *2-3 (N.D. Cal. Aug. 14, 2013) (ultimately holding that the reports did not have to be produced because they would be of little to no benefit to Samsung, who had already submitted its expert report on damages). Moreover, courts have allowed ESI discovery even where it would take many days to produce the data. See, e.g., Gonzales v. Google, Inc., 234 F.R.D. 674 (N.D. Cal. 2006) (allowing ESI discovery where producing party claimed it would take eight full days of engineering time to produce the data that the government sought); Mervyn v. Atlas Van Lines. Inc., 2015 WL 12826474, at *6 (N.D. Ill. Oct. 23, 2015) (requiring production even where producing party claimed it would take a week to create the script, a week to run the script, and a week to check the results). Plaintiff has met her burden of showing that the discovery she seeks is relevant and necessary to her claim. While Defendant has shown that there will be some burden to it in responding to Plaintiff’s request, the burden does not outweigh the likely benefit of production. As such, Defendant has not shown that there is good cause for issuing a protective order. Defendant must, therefore, either write the program that would produce the class data of wrong number calls and associated account notes for the class period or produce the relevant portions of its database to Plaintiff so that her expert, Jeffrey Hansen, can write the program and conduct the query himself. Should Defendant choose to write the program itself, Plaintiff must bear the reasonable cost of doing so. Should Defendant choose to give Plaintiff access to its database so that Hansen can write the program and perform the query, Defendant must provide sufficient information to Plaintiff so that Hansen can understand the database. As Defendant noted in its objections to Hansen’s declaration, only Defendant knows how it implemented its own database. Therefore, Defendant must either make an individual who has knowledge of its database available for deposition–even if this means Beirdneau must be deposed again–or respond to Plaintiff’s Interrogatories Nos. 6 and 7 and Request for Production No. 4. Finally, to minimize the burden to Defendant of running the program on its database, it shall be run during non-business hours.