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Magistrate Denies Request for Production of Native PST Files But Orders Defendants to Produce Electronic Material in a Readable, Usable Format

Posted in CASE SUMMARIES

CP Solutions PTE, Ltd. v. General Elec. Co., 2006 WL 1272615 (D. Conn. Feb. 6, 2006)

In this recently published case, plaintiff found fault with defendants’ production of 301,539 pages of documents in response to its 131 requests for production. Plaintiff moved to compel defendants (1) to supplement their production so as to identify every document which is responsive to each of plaintiff’s requests for production; (2) to organize and label each responsive document to correspond to the categories of plaintiff’s requests; and (3) to produce the “native” or “original” electronic documents identified as “Personal Folder Files” (“PST files”) which, plaintiff alleged, underlie the hundreds of thousands of pages of emails and accompanying attachments comprising defendants’ production “as they are kept in the normal course of business.” Plaintiff argued that, due to the volume and disorganized state of defendants’ production, defendants should be required to organize and label the documents produced to correspond to plaintiff’s requests for production. Plaintiff complained that thousands of emails were separated from their attachments, thousands of pages of “gibberish” were produced, and documents were commingled and, thus, were not produced as kept in the ordinary course of business. Plaintiff further claimed that the PST files, as they are kept in the ordinary course of business, would drastically reduce the time needed to prepare an index of defendants’ documents.

In response, defendants asserted that all electronic documents were produced in TIFF format (“Tagged Image File” format), which was essentially a “picture” of the document, and that they provided plaintiff with a CD of all the documents, which should have allowed plaintiff to import the data into its computer database. Defendants argued that, using plaintiff’s litigation support software, Summation, plaintiff should have been able to sort the documents by electronic ID numbers, which would have revealed the e-mail/attachment relationship. Defendants further maintained that, following several meetings between their IT personnel, it was their understanding that all issues regarding the e-mail attachments had been resolved.

The court observed that Rule 34(b) clearly provides two alternative options for complying with a document production request, and concluded that defendants, having chosen to produce the documents as kept in the ordinary course of business, would not need to categorize them or label and organize them to correspond to specific requests for production. However, it stated that it would require defendants to re-produce some of the documents in the manner kept in the ordinary course of business, as follows:

First, with respect to the thousands of pages of unreadable “gibberish” produced by defendants, the court ruled that, to the extent that the underlying documents were created or received by any of the defendants in a readable format, they must be produced for plaintiff in a readable, usable format.

Second, it addressed plaintiff’s request that defendants release copies of the PST files underlying the hundreds of thousands of e-mails and accompanying attachments produced by defendants, since this was the manner in which the e-mails were kept in the ordinary course of business and the PST files would facilitate plaintiff’s ability to index the documents and identify which attachments belong to which e-mails. Plaintiff argued that, due to the software employed by defendants, many of the underlying e-mails were combined into a single document without their accompanying attachments. Although defendants had offered to provide plaintiff with the “metadata,” at a cost of $11,091.36, to help in this regard, plaintiff maintained that this would not solve the problem of the separated attachments and, in any event, defendants should bear this expense.

Defendants argued that re-producing the documents in PST format would require them to produce privileged documents, since they have no way of separating out documents from the “entire mailbox” of the producing party. They also expressed concern that PST files, which contain the documents in their “native” format, would be susceptible to manipulation and editing.

The court ruled:

Based on Defendants’ representations that disclosure of these files would include privileged information, which they are unable to sort out, and would also involve the production of a “staggering” number of additional documents, the Court declines to order production of these PST files at this time. If Plaintiff’s counsel can show the need for a specific PST file and a means to secure this without the production of privileged or irrelevant documents, the Court will reconsider this request.

Third, with respect to the attachments to e-mails, the court noted that defendants had represented that they had already provided plaintiff with the information needed to match the e-mails with their attachments. If was not the case, the court ruled that defendants, at their expense, would be ordered to provide plaintiff with the information, data, or software needed to accomplish this. It continued:

Defendants chose to provide the documents in the manner in which they were kept in the ordinary course of business. Attachments should have been produced with their corresponding e-mails. The Court appreciates the fact that the attachments were created with different software programs, but that does not provide Defendants with an excuse to produce the e-mails and attachments in a jumbled, disorganized fashion.