In Famulare v. Gannett Co., No. 2:20-cv-13991(WJM) (D.N.J. March 17, 2022), New Jersey District Judge William J. Martini, finding that “Defendants have not persuaded this Court that the December 6, 2021 text order is clearly erroneous, contrary to law, or an abuse of Judge Hammer’s discretion” denied the defendants’ appeal of Magistrate Judge Michael Hammer’s order for the defendants to produce screenshots of Salesforce data from the defendant’s online Salesforce database or submit to a Rule 30(b)(6) deposition of a defendant representative if it maintained it could not produce the screenshot format.

Case Discussion

In this case, the plaintiff, a former Gannett Account Executive, stated that Salesforce maintains and memorializes various performance metrics of individual Account Executives and offers users the ability to generate reports of those metrics for a specified time period. The plaintiff generated and printed such reports of her own performance metrics and requested the same Salesforce data for certain other Gannett employees for purposes of comparison. The defendants asserted that the reports the plaintiff produced and printed were not free-standing, fixed reports, but were screenshots of the Salesforce “Dashboard” that displays the user’s real-time data, so they stated they could not generate or print out the reports the plaintiff requested and could only provide her with Salesforce’s underlying historical data exported to a Microsoft Excel spreadsheet, which they had already produced.

Following a telephone conference with the parties, Judge Hammer entered an order on the docket, stating “to the extent possible, Defendant shall produce the reports in screenshot format in addition to the Excel spreadsheet format already produced. Counsel shall schedule and take the Rule 30(b)(6) deposition of a Defendant representative on this issue, if Defendant maintains that it cannot produce the screenshot format.” Two weeks later, the defendants appealed Judge Hammer’s text order on the grounds that it requires them to produce ESI in a second format in contravention of Federal Rule of Civil Procedure 34(b)(2)(E)(iii).

Judge’s Ruling

While noting that “[a] Magistrate Judge’s non-dispositive order may be set aside if it is clearly erroneous or contrary to law”, Judge Martini stated: “Defendants have not persuaded this Court that the December 6, 2021 text order is clearly erroneous, contrary to law, or an abuse of Judge Hammer’s discretion. Indeed, Defendants have not presented a genuine conflict between the text order and their discovery obligations. On the one hand, they argue that the text order impermissibly requires them to produce ESI in a second format,…but on the other, they continue to argue that ‘it is not possible to give Plaintiff this actual information in the form of screenshots of the Salesforce Dashboard due to the dynamic nature of the platform.’…It is precisely because of this latter argument that Judge Hammer afforded Defendants the option of providing an appropriate representative to testify at a Rule 30(b)(6) deposition on Salesforce’s functionality and how it reports or maintains the data at issue. To the extent Defendants now argue ‘there is no basis to have a corporate representative deposed about whether Defendants have the capability to take screenshots,’…that position starkly contrasts their prior representations at the parties’ meet-and-confer and on the December 6, 2021 telephone conference that they are ‘happy to have [Plaintiff] take [the deposition] and speak with our client representatives who can tell them about what’s possible and what’s not.’”

Judge Martini also noted that in upholding the order to produce Salesforce data as screen shots or submit to a 30(b)(6) deposition: “Defendants rely heavily on information drawn from certifications by Gannett employees and exhibits attached thereto to explain to this Court about Salesforce’s functionality and how it maintains and stores data”, but stated: “as Defendants acknowledge, this information was not previously presented to or available to Judge Hammer for consideration…This Court ‘may not take into consideration any evidence that was not put forth before the magistrate judge when reviewing the magistrate judge’s factual determination.’…That Defendants need to rely on outside evidence to explain the functionality of Salesforce only underscores the clear need for a Rule 30(b)(6) deposition and a more developed record on this topic, as Judge Hammer repeatedly stated to the parties on the December 6, 2021 telephone conference. The Court reiterates Judge Hammer’s sentiments that until that deposition is completed, the nature of the Salesforce program and its capabilities are unknown.”

As a result, the defendants’ appeal was denied and Judge Hammer’s text order to produce Salesforce data as screen shots or submit to a 30(b)(6) deposition was affirmed.

So, what do you think? Do you think the defendants should have been ordered to produce the Salesforce data in screen shot form when they already produced it in spreadsheet form?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today. See Kelly Twigger of eDiscovery Assistant discuss this case here!

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.