Production of ESI in Paper Format Does Not Comply with Rule 34 Option to Produce ESI in Reasonably Usable Form; Court Orders Re-Production of Certain ESI in Native Format

White v. Graceland Coll. Ctr. for Prof’l Dev. & Lifelong Learning, Inc., 2008 WL 3271924 (D. Kan. Aug. 7, 2008)

In this wrongful termination case, plaintiff moved for an order compelling defendants to, among other things, provide complete information on defendants’ document retention policy and how such policy may have affected ESI responsive to certain discovery requests, and re-produce certain electronic documents in their native format.  The court denied the former, but granted the latter request.

Information on Defendants’ Document Retention Policy

Plaintiff’s discovery requests had asked defendants to identify any computer or electronic devices used by its management or human resources department in the years 2003 or 2004, and whether the device had been search or analyzed to determine if any files, notes, or documents related to plaintiff were contained on the device.  Plaintiff also asked that defendants identify and produce any documents related to plaintiff found on the device.

Defendants asserted numerous objections, but responded as follows:  "The individual Defendants did not utilize any PDAs in 2003 or 2004.  The individual Defendants did utilize computers provided by Defendant SkillPath Seminars in 2003 and 2004.  The network servers used by Defendant SkillPath Seminars were searched for responsive documents."  A supplemental answer explained defendants’ procedure when it received a new computer, identified computers and networks that were searched for responsive documents, and explained why some old computers and "loaner" computers were not searched.  In response to plaintiff’s request for production, defendants objected but also stated they would produce non-privileged, responsive documents, and referenced a document by Bates number range.  In addition, defendants produced an affidavit authored by its Director of Information Systems to show they conducted an adequate search of their electronic systems to find documents pertaining to Plaintiff.

Plaintiff argued that the affidavit did not indicate when he conducted his searches, how he conducted the searches, or whether he found any documents as a result of his searches.  Additionally, while it indicated that he "searched the hard drives" of several employees, it failed to indicate whether the hard drives were in use in 2004 or contained information or documents from 2004.

Rejecting plaintiff’s various criticisms, the court found that defendants had provided sufficient responses to these discovery requests and denied that portion of plaintiff’s motion.

Re-production of Documents in Native Format

Plaintiff asked that defendants be compelled to produce certain listed documents, primarily emails and email attachments, in their native format, which had previously been produced by defendants in paper form.  Defendants objected to producing the documents again in native format, arguing that plaintiff had failed to request that ESI be produced in its native format and could not raise this argument in her second motion to compel.  They argued that they produced emails and other electronic information in a "reasonably usable form," as contemplated by Fed. R. Civ. P. 34(b)(2)(E)(ii).  Defendants further argued that plaintiff had failed to make a particularized showing of why she needed access to these emails in their native format.

Plaintiff countered that defendants’ discovery responses had failed to indicate the form in which responsive ESI would be produced.  Instead, defendants had converted the ESI prior to producing them by forwarding them to an administrative assistant, who then converted them to PDF, printed them, and produced the paper printouts to plaintiff.  Plaintiff argued that defendants’ method of producing documents changed the form of the documents from the way they were kept in the ordinary course of defendants’ business, and that the paper production was not a “reasonable usable form.”  She asserted that without electronic and native copies of the paper documents produced by defendants, which were documents are all connected to events leading up to, and following plaintiff’s termination, she was unable to confirm or contradict that the documents were prepared at the time defendants said they were prepared.  Plaintiff explained that the timing, of when the decision to terminate plaintiff was made by defendants, was a critical issue in the case.  Additionally, without electronic copies, plaintiff could not be sure that, when prepared, the documents reflected what the documents now reflect.  Plaintiff also wanted to ensure that two particular documents had not been modified.

The court observed that Fed. R. Civ. P. 34(b)(2)(E)(ii) provides that "[i]f a request does not specify a form for producing [ESI], a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms," and that "[a] party need not produce the same [ESI] in more than one form."  The court further observed that the advisory committee notes to the 2006 amendments to Rule 34 provided that the producing party’s "option to produce in a reasonably usable form does not mean that a responding party is free to convert [ESI] from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation," and that "[i]f the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature."

The court stated that, because plaintiff failed to specify a form for producing the electronically stored emails and attachments, defendants were required under Rule 34(b)(2)(E)(ii) either to produce the emails and attachments in the form (1) in which they are ordinarily maintained, or (2) in a reasonably usable form.  The court found that defendants’ paper production of ESI did not comply with Rule 34:

The Court finds that Defendants failed to produce the emails and attachments in either the form in which they are ordinarily maintained, or in a "reasonably usable form," as required by Rule 34(b)(2)(E)(ii).  Defendants’ conversion of the emails and attachments to PDF documents and production of the PDF documents in paper format does not comply with the option to produce them in a reasonable usable form.  The advisory committee notes for the 2006 amendments to Rule 34 provide guidance that Defendants’ option to produce in a reasonably usable form does not mean that they are free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for Plaintiff to use the information efficiently in the litigation.  As Defendants have not produced the emails and attachments in a "reasonably usable form," Plaintiff is entitled to have the emails and attachments produced in their native format.  She has further explained the critical importance of obtaining them in their native format with metadata intact.

The Court notes that this discovery dispute is an example of one which the re-production of discovery could have been altogether avoided had the parties adequately conferred at their Fed. R. Civ. P. 26(f) conference regarding production of electronically stored information ("ESI").  While not all disputes regarding discovery of ESI can be prevented by early efforts by counsel to investigate and consider the possible forms discovery may be produced, many disputes could be managed and avoided altogether by discussing the issue before requests for production are served.  Guideline 4(f) of the Guidelines of Discovery of Electronically Stored Information, available on the District of Kansas’ website, specifically mentions that during the Fed. R. Civ. P. 26(f) conference, counsel should attempt to agree on the format and media to be used in the production of the ESI.

Thus, the court granted plaintiff’s motion as to her request to compel defendants to produce certain emails and email attachments in their native format, notwithstanding the previous production in paper form.

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