Plaintiffs brought this action under the Sarbanes-Oxley Act, claiming they were terminated in retaliation for filing complaints about defendants’ alleged tax fraud and other accounting irregularities. Among other relief requested in their motion to compel, plaintiffs asked the court to order defendants to reproduce, in native electronic format, all documents which they had produced over the course of the litigation. The court noted that the precise documents plaintiffs were seeking, and the reasons why electronic versions were being sought, “have been somewhat of a moving target in their papers.” The court observed that plaintiffs had originally suggested that certain (unidentified) documents had been edited or altered by defendants or by their attorneys. However, the court found no indication in the record that defendants' documents had been altered in any way – except to the extent that defense counsel added document production numbers, confidentiality labels and, in some instances, indicated that certain information had been redacted.
In their reply papers, plaintiffs explained that they needed the electronic versions of (unidentified) emails and attachments as well as all documents which contained information that did not fit on a standard 8.5″x11″ page. They further claimed that they were unable to track which attachments were sent with any given email, and argued that they were unable to properly analyze hard-copy spreadsheets (some of which reportedly were hundreds of pages long) that contained financial information that ran over the margins of a standard page. The court found that plaintiffs had provided no basis for compelling defendant to reproduce its entire document production in native, electronic format. The court noted that plaintiffs’ original document requests, served prior to the December 2006 e-discovery amendments to the Federal Rules of Civil Procedure, had not specified the form in which the documents were to be produced. Further, the plaintiffs had never objected at any time during discovery to defendants’ production of hard-copy documents, and only sought the electronic production some six months after the close of discovery.
Plaintiffs contended that it was “black-letter law” that defendants were obliged to re-produce its entire document production in electronic form. However, the court found that the cases they cited merely acknowledged the principle that electronically stored information falls within the definition of “document” under Fed. R. Civ. P. 34.
The court was unpersuaded that defendant should reproduce its entire document production in electronic form, and noted that the apparent burden and expense of such an undertaking would “dwarf” any benefit to the plaintiffs. However, the court denied the motion without prejudice, inviting plaintiffs to “specifically identify for defendant (on a document-by-document basis) those documents which they asserted are unusable or unreadable in hard copy format.” The court went on to note that it was “hopeful that defendant will then provide plaintiffs with electronic versions of those identified documents and that the matter will be resolved.”