D’Onofrio v. SFX Sports Group, Inc., 247 F.R.D. 43 (D.D.C. 2008)
In this contentious employment discrimination case, Magistrate Judge John M. Facciola resolved a number of discovery disputes relating to the production of electronically stored information.
Among other relief, plaintiff sought the production of a certain business plan in its original electronic format, with accompanying metadata. Plaintiff argued that Fed. R. Civ. P. 34 permits the production of documents outside of their original format only "if necessary," and that in this case, there was no such necessity. Defendants responded that: (a) plaintiff did not request that the Business Plan or any other documents be produced in a specific format; (b) production in original electronic format with metadata is not required by the Federal Rules of Civil Procedure or in the absence of a clear agreement or court order, neither of which were present here; and (c) plaintiff had not demonstrated the relevance of the metadata.
The court rejected plaintiff’s interpretation of Rule 34:
Rule 34(a) does not set forth constraints on the manner of production, but instead establishes the permissible scope of a request. Consequently, the "if necessary" clause seized upon by plaintiff is actually a constraint on the requesting party rather than the responding party. In other words, electronic data is subject to discovery if it is stored in a directly obtainable medium. If, however, it is not stored in a directly obtainable medium, a request may be made of the responding party to translate the electronic data into a "reasonably usable form." Because the step of translating this type of electronic data adds an extra burden on the responding party, the request may only seek for it to be done "if [the translation is] necessary." It is not the case that this clause requires the responding party to produce data in its original form unless "necessary" to do otherwise.
Further, the court observed that plaintiff’s request for production did not specify that the business plan be produced solely in its original format with accompanying metadata. The court rejected plaintiff’s strained interpretation of an instruction included with her request for production, and concluded:
Ultimately, then, it does not matter whether the Instruction referred to paper or electronic files–a plain reading leads to the conclusion that plaintiff did not make a request that the Business Plan be produced solely in its original format with accompanying metadata. See Vanston Bondholders Prot. Comm. v. Green, 329 U.S. 156, 170 (1946) ("Putting the wrong question is not likely to beget right answers even in law."). A motion to compel is appropriate only where an appropriate request is made of the responding party. See Fed.R.Civ.P. 37(a)(1)(B); Raghavan v.. Bayer USA, Inc., No. 3:05-cv-682, 2007 WL 2099637, at *4 (D.Conn. July 17, 2007) ("The court will not compel discovery that has not been sought."). Because no such request has been made concerning the Business Plan, the Court will not compel the defendant to produce it in its original form with accompanying metadata. See, e.g., Ponca Tribe of Indians v. Continental Carbon Co., No. CIV-05-445-C, 2006 WL 2927878, at *6 (W.D.Okla. Oct. 11, 2006) ("The original document requests issued by Plaintiffs failed to specify the manner in which electronic or computer information should be produced. [Defendant] elected to use a commonly accepted means of complying with the request. Nothing in the materials provided by Plaintiffs supports requiring [Defendant] to reproduce the information in a different format. Accordingly, Plaintiffs’ request for reproduction of documents in their native electronic format will be denied."); Wyeth v. Impax Labs., Inc., No. Civ. A. 06-222-JJF, 2006 WL 3091331, at *1- 2 (D.Del. Oct. 26, 2006) ("Since the parties have never agreed that electronic documents would be produced in any particular format, [Plaintiff] complied with its discovery obligation by producing image files"). Cf. Treppel v. Biovail Corp., 233 F.R.D. 363, 374 (S.D.N.Y.2006) (requiring production in native format where requesting party asked for it and producing party did not object). See also RALPH C. LOSEY, E-DISCOVERY, CURRENT TRENDS AND CASES 158-59 (2007) (summarizing recent cases as amounting to a "lesson … that in order to obtain metadata you may need, you should specifically ask for it to begin with").
Plaintiff also claimed that defendants deliberately caused the spoliation of electronic records and purposely failed to produce many e-mails and documents. She alleged that her consultant, Kroll Ontrack, Inc. ("Kroll"), conducted "an exhaustive review" of the searchable database of archived Department of Justice material produced by defendants and discovered that "pertinent e-mails and documents were not among the material produced." Further, defendants had refused plaintiff’s request to have a Kroll representative review the archived material at the defendants’ Texas or Washington, D.C. locations. Plaintiff intimated that defendants’ unwillingness to allow the inspection may be an effort to hide spoliation; she also raised questions about when her computer was "scrapped."
Defendants responded that they "have never received any correspondence from Kroll or Plaintiff’s counsel regarding any deficiencies with the electronic data produced." Further, defendants insisted that plaintiff was not prejudiced by the scrapping of her computer because all emails sent and received by her were captured from "defendants’ server and have been produced."
The court concluded that the record was "too thin" to assess the merits of plaintiff’s spoliation allegations. Consequently, the court ordered that an evidentiary hearing be held on the matter:
Specifically, I intend to hear testimony pertaining to: (a) the basis for the Kroll representative’s conclusion that e-mail and other documents have not been produced; (b) testimony from plaintiff as to what documents and electronically stored information she believes have not been produced; and (c) the circumstances concerning the scrapping of plaintiff’s computer and the consequences thereof in light of any demand made by plaintiff to preserve its contents.
In a separate order, the court set the evidentiary hearing on the spoliation allegations to take place on February 13, 2008. The court postponed ruling on the parties’ cross motions for sanctions until after the evidentiary hearing.