A Party Cannot Use a Software License Agreement as a Shield Against Production

In Pero v. Norfolk S. Ry., Co., No. 3:14-CV-16-PLR-CCS, 2014 WL 6772619 (E.D. Tenn. Dec. 1, 2014), the court rejected defendant’s software license argument and declined to require plaintiff to view the at-issue video at Defendant’s counsel’s office or to obtain a license for the proprietary viewing software.
It reasoned that “Rule 34 clearly envisions that the responding party will bear reasonable burdens in producing discoverable materials in its possession.” It ordered the defendant to either produce a laptop with the video loaded on it for Plaintiff’s use in the litigation or to reimburse the plaintiff for the cost of a software license.