A multi-part series on the fundamentals eDiscovery practitioners need to know about the preparation and production of ESI
In “The Final Countdown,” we discussed the importance of production and the primary production formats. In “The Nitty-Gritty and Other Reduplications,” we discussed other important production format considerations. In “Who Gets to Decide,” we discussed what the FRCP have to say about who selects the production format. In this Part, we review some actual production format disputes.
Now that we have reviewed how the production format selection process is supposed to work under the FRCP, let’s take a look at some recent cases to see the disputes that arise and how courts are applying those rules in practice.
In Baker v. Santa Clara Univ., Case No. 17-cv-02213-EJD (VKD) (N.D. Cal. July 31, 2018), the plaintiff sought an order compelling production of requested ESI in native format. During discovery, she “served 54 requests for the production of documents” including “a single request that purports to cover the format of production for all documents responsive to the other 53 requests.” That request stated:
With respect to each request, produce all documents in native format, including electronically stored information, metadata, and all metadata fields. Do not do anything that strips, removes, changes, limits, or otherwise alters the actual electronically stored information and metadata fields of any document that exists in an electronic format. Ensure that all such evidence remains intact, undisturbed, and is produced with each and every electronic document. [emphasis added]
Despite this request, the defendant produced over 2,500 pages of materials – all in PDF format without metadata, and the plaintiff moved to compel reproduction of the materials in native format with metadata.
The plaintiff argued, primarily, that “having these documents in native format will allow her to more easily discover if SCU has omitted responsive documents from its production.” The defendant argued that it had attempted to meet and confer about ESI production issues “more than a year ago” pursuant to FRCP 26(f) but that the plaintiff’s counsel “did not meaningfully engage in the required discussion,” and it argued that reproducing now in native format would be “time consuming, burdensome, and expensive.”
The court concluded that “[n]either party ha[d] complied with the rules and guidelines that govern the production of electronically stored information,” the plaintiff having failed to meet and confer and the defendant having failed to properly object and produce in accordance with FRCP 34(b). The court then looked to “the dual requirements of relevance and proportionality” and concluded that:
Absent a specific, articulable basis for believing SCU has not complied with its discovery obligations, Ms. Baker does not have a compelling reason for demanding that SCU re-produce its entire responsive document production in native format simply because she might find something missing.
In In re Syngenta AG MIR 162 Corn Litigation, MDL 2591, Case No. 16-2788-JWL (D. Kan. 2018), “the parties  asked the court to resolve a dispute concerning the format of electronic discovery to be produced by Louis Dreyfus Company Grains Merchandising LLC (‘LDC’),” which proposed “to meet the current document-production deadlines by producing electronic discovery in native format, rather than in TIFF image format as required by the ESI Protocol Order” [footnote omitted; emphasis added].
After already having been granted an extension to meet its production obligations, LDC “produced a large number of documents in native format . . . in order to get the documents to Syngenta as expeditiously as possible.” LDC claimed that converting documents to TIFF would add “substantial time to production.” Syngenta objected, emphasizing the requirements of the ESI Protocol Order and the inability to use per-page Bates numbering for depositions, and LDC then asked the court “to relieve it from the production requirements of the ESI Protocol Order.”
The court found LDC’s arguments unpersuasive and denied its request:
First, there is no dispute that documents in TIFF format are easier to work with and enable depositions and court proceedings to run more smoothly. . . .
Second, the ESI Protocol Order requires a party seeking to deviate from the image/TIFF-format production to “promptly” notify the requesting party as soon as it identifies a source of data to which the protocol should not apply (because it would be unduly burdensome or impractical). Here, LDC did not notify Syngenta or the court before producing documents in native format. . . .
Third, LDC has offered no evidence to support its “burdensome” and “impracticality” arguments. [emphasis added]
In McDonnel Grp., LLC v. Starr Surplus Lines Ins. Co., Case No. 18-1380 (E.D. La. Oct. 3, 2018), the defendants requested production of “all construction schedules for the Project in their native format (as native files).” Rather than objecting specifically to the requested form of production and proposing an alternative as required, the plaintiffs offered only a boilerplate objection to the overall request.
The court concluded that, “[b]y failing to object to production in native format,” the objection had been waived. Moreover, the court stated that:
. . . the need for production in the requested, unobjected-to native format, with its associated metadata, is self-evident in this instance. Metadata provides information such as “the author, date/time of creation and date modified.” Such information in the construction schedule context, with its frequent alterations, change orders, and time sensitive but often disturbed deadlines, is relevant. The PDF files chosen by plaintiff for production are merely pictures of the materials that do not provide metadata. [internal citation omitted; emphasis added]
The plaintiff also attempted to rely upon FRCP 34(b)(2)(E)(iii), which provides that “[a] party need not produce the same electronically stored information in more than one form,” but the court concluded it had also “dispossessed itself of this protection” when it failed to object as required:
To permit a responding party, in the face of a request that ESI be produced in a particular form, arbitrarily to choose some other form, would disrupt and undermine the orderly request/response/objection/confer structure and requirements of the remainder of the Rule concerning ESI. [emphasis added]
In David A. Johnson & Alda, Inc. v. Italian Shoemakers, Inc., Case No. 3:17-cv-00740-FDW-DSC (W.D.N.C. Oct. 22, 2018), numerous issues arose regarding the plaintiffs’ productions’ completeness, timeliness, and format. With regard to format, the plaintiffs repeatedly produced emails in PDF format rather than in native format with metadata. The court found that to be an unjustified deviation from its discovery order:
. . . the Court finds that Plaintiffs’ August 14, 2018 production failed to comply with this Court’s Order. Plaintiffs’ August 14, 2018 production consisted of emails in PDF format, which is not how emails are maintained in the regular course of business. Further, Plaintiffs’ documents were not labeled to correspond to the respective discovery request. [internal citations omitted; emphasis added]
Ultimately, the court not only ordered that production be completed as previously ordered, but also awarded sanctions:
The Court imposes reasonable expenses, including attorney’s fees, relating to the Motion to Compel, Motion for Sanctions, and any ongoing attorney fees related to this discovery. Further, the Court orders Plaintiffs to produce all discovery requests, including attachments, in usable form by the close of business on October 24, 2018. [emphasis added]
In its analysis, the court explained that the requirement in FRCP 34(b)(2)(E)(ii) to produce ESI “in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms” is satisfied “when the party provides documents that are searchable and/or sortable by metadata fields” [emphasis added].
In Metlife Inv’rs. USA Ins. Co. v. Lindsey, Case No. 2:16-CV-97 (N.D. Ind. Oct. 25, 2018), the parties’ initial plan stated that “[a]ll ESI produced electronically will be produced in native format to the extent possible.” Despite this, the plaintiff “generally produced documents in nonsearchable PDF format,” over the defendants’ repeated objections:
. . . MetLife concedes that the method in which it produced the documents is not how they are kept “in the usual course of business,” as required by Rule 34(b)(2)(E)(i). Although MetLife repeatedly states that PDF is the “most usable” format, it cites no authority showing that this satisfies its obligations under Rule 34. Moreover, MetLife’s production was not consistent with what the parties discussed at the beginning of discovery. [emphasis added]
The plaintiff also argued that producing the materials again in native format would impose a disproportionate burden, but the court was not persuaded:
. . . MetLife offers no argument on that point beyond objecting to the relevance and stating that the production would be duplicative. MetLife does not discuss the volume of the additional information sought, the expense involved, or the risk of revealing any confidential or privileged information; nor has it moved for a protective order. A request to produce documents is not disproportionate or unreasonable simply because some of the material sought has already been produced, particularly when the initial production did not conform to the rules. [emphasis added]
Ultimately, the court ordered the plaintiff to reproduce the materials in native format and left open the possibility of an award of expenses. In doing so, the court also drew a noteworthy – and somewhat surprising – distinction between getting native format and getting all metadata:
Finally, although Defendants are entitled to the previously produced documents in native form, the Court clarifies that they are not entitled to all metadata. Some of Defendants’ filings could be interpreted to argue that Defendants are entitled to all metadata related to the documents previously produced. In general, metadata must be specifically requested in advance, and Defendants did not do that. While production in native format will inevitably result in the exchange of some metadata, Defendants are not entitled to all metadata generally, except to the extent it appears with the documents as kept in the usual course of business. [internal citation omitted; emphasis added]
Upcoming in this Series
In the next Part, Preparing the Production, we will continue our review of production fundamentals with a discussion of actual preparation of the production.