Software License Cannot Be Used as a “Shield” Against Production

In Pero v. Norfolk Southern Railway, Co., No. 14-cv-16 (E.D. Tenn. Dec. 1, 2014), the United States District Court for the Eastern District of Tennessee concluded that a party cannot use a video software license to block a party from obtaining relevant evidence. Pero, an employee of Norfolk, sued after he was injured while operating a locomotive. The train was equipped with a camera and recorded the events leading to Pero’s injuries. Pero moved to compel production of the video, which could only be viewed using a proprietary software program. Norfolk moved for a protective order, arguing that providing a copy of the video would exceed the scope of its software license. Norfolk took the position that Pero had to pay $500 to purchase his own license or Pero could view the video in Norfolk’s counsel’s office.

The court began its analysis by reviewing Rule 34 of the Federal Rules of Civil Procedure, specifically subsection (b)(2)(E)(ii), which states that electronically stored information must be produced “in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” The court also relied on the comments to the 2006 amendments, which acknowledge 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 found that the train’s camera was similar to “[p]olice cruiser cameras, store cameras, and surveillance cameras,” which “often use unique software” but “the existence and use of this software cannot insulate against production.”

Ultimately, the court concluded that because Norfolk could envision the recordings being used in litigation, 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 conditions to the production of the recording.” Thus, the court ordered Norfolk to either provide Pero with a laptop computer loaded with the software and the video or request that Pero obtain a software license and reimburse Pero for the cost. The lesson of this case is straightforward: a party cannot use a software license as an excuse for withholding or making it difficult for a party to obtain relevant evidence.