Discovery disputes in class actions often focus on plaintiffs’ requests for computer data regarding putative class members’ claims, and how far defendants need to go in providing such data. An Illinois federal court recently addressed this in an employment class action. The key takeaways from this opinion are that: (1) a defendant was not required to create a dataset that did not exist in order to respond to the plaintiffs’ discovery requests; and (2) a defendant was entitled to create a new dataset as work product for the purpose of assisting its expert, without disclosing the data until the expert report was disclosed.

In Ahad v. Bd. of Trs. of S. Ill. Univ., 2018 U.S. Dist. LEXIS 11248 (S.D. Ill. Jan. 24, 2018), a putative class action alleging gender discrimination in the compensation of physicians, the plaintiff sought sanctions on the grounds that the defendants’ expert had relied on certain data regarding physicians’ compensation that was not produced in response to the plaintiff’s earlier discovery requests. The court first held that “Defendants did not have a duty to create a spreadsheet or database that tracked total compensation when one did not exist” because, although the defendants had the ability to create such data, they “were only required to produce records as kept in the normal course of business,” and “were not under a further obligation to create a new dataset if it was not kept in the usual course of business.” Id. at *14-16. The court noted that the plaintiff could have requested raw payroll data from which a dataset could be created. Id. at *16. The defendants were entitled to create a total compensation spreadsheet for the use of their expert witness, which was protected as work product until the expert report was disclosed. Id.

The court’s approach here allows defendants the flexibility of being able to work with a consulting expert and with their counsel to create a new dataset that may or may not support their position in the litigation, and protect that information unless and until they want to use it. Plaintiffs are not prejudiced because they can request raw data and have their expert manipulate it as they see fit to attempt to support their case.