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Pero v. Norfolk S. Ry., Co.

Propriety Nature of Software
Not a Shield Against Production

The Plaintiff in this case was employed as a locomotive conductor for the Defendant when he alleged he was injured during an effort to remove a tree that was blocking railroad tracks. Both parties agreed that a RailView camera “most likely” captured a video reflecting the position of the tree on the railroad tracks. They also concurred that the video was relevant to the issues in the case. However, the Defendant refused to produce the video citing licensing issues with the software required to view the video.

Plaintiff filed a Motion to Compel production of the video arguing that the video was highly relevant evidence that must be produced pursuant to Rule 34 of the FRCP. Plaintiff further argued that it was “grossly unfair” for the Defendant to have possession of the video and require the Plaintiff to either purchase a copy of the RailView software or view the video in Defendant’s counsel’s office. Defendant argued that the video could only be viewed using propriety RailView software and that providing a copy of the license to Plaintiff to view the video would exceed the scope of their license. Defendants filed a Motion for a Protective Order establishing that they did not have to produce the video until Plaintiff acquired a license for the RailView software and that the Defendant would not be required to pay for Plaintiff’s license.

In its analysis, the Court noted that there was no question that the video was relevant evidence pursuant to Rule 26 and indicated that the issue was “the conditions the Defendant, as the producing party, can attach to production of this discoverable data.” The Court pointed to the Rule 34 requirement that if a form for ESI production is not specified, the producing party “must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Fed.R.Civ.P. 34(b)(2)(E)(ii). The Court further noted the Comments to the 2006 Amendments to the FRCP which stated that “(u)nder some circumstances, the responding party may need to provide some reasonable amount of technical support, information on application software, or other reasonable assistance to enable the requesting party to use the information.”

The Court noted that other railroad entities had objected to the production video recording and cited Donahoo v. CSX Transportation, Inc., 4:12-CV-104-JHM-HBB, Doc. 46 (E.Db. Ky. July 10, 2014), and Swoope v. CSX Transportation, Inc., 4:13-CV-307-HLM, Doc. 54 (N.D. Ga. Aug. 13, 2014). In both cases, the court was unconvinced by arguments that licensing agreements with software companies prohibited the production of railroad videos. When the court in Donahoo considered the same argument as in the current case, it ordered that the Defendant give the Plaintiffs a laptop computer loaded with the video and viewing software, or that the Plaintiff obtain a copy of the software and be reimbursed for the expense by the Defendants. In Swoope , the court ordered the Defendant to produce the video to the Plaintiff in a “reasonably viewable form, such as .avi” or provide a licensed copy of the software to the Plaintiff.

The Court in this case was similarly unpersuaded by the Defendant’s arguments against producing the video recording noting that Rule 34 “clearly envisions that the responding party will bear reasonable burdens in producing discoverable materials in its possession.” The Judge indicated that in her experience and in the case law, the recording software was not unique:

Police cruisers cameras often use unique operating software, which is almost always embedded with additional information –date, location, usage of lights or other tools—but the existence and use of this software cannot isolate against production…..(T)he defendant certainly envisioned the recordings produced by RailView being used in litigation or other claims against it. It cannot use its choice to enter into a software agreement as a shield against producing a relevant piece of discovery, nor can it use the agreement as a basis for attaching burdensome condition to the production of the recording.

Concluding, the Court denied the Defendant’s Motion for a Protective Order and directed Defendant to provide Plaintiff with a laptop loaded with the video and viewing software for use during the litigation, or request that Plaintiff buy the software and reimburse them for the expense.

Pero v. Norfolk S. Ry., Co., No. 3:14-CV-16-PLR-CCS, 2014 WL 6772619 (E.D. Tenn. Dec. 1, 2014)

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