From 2001-2009 Melissa Brinckerhoff was a volunteer firefighter in the town of Paradise, California. Volunteer is a misnomer however, as the town’s firefighters were entitled to benefits and some pay. These volunteers are also protected by various anti-discrimination statutes. Brinckerhoff was fired in 2009. She filed an action claiming that the fire department extended her probationary period and later terminated her because of her gender and claimed disability based on a back injury.
In responding to the plaintiff’s request for e-mails and other documents, the town of Paradise produced hard copies consisting of roughly 4,000 pages. Ms. Brinckerhoff’s attorney demanded that the defendant produce emails in their native file format, as well as computer contents used by the department captains during the time period in question. Unfortunately for Ms. Brinckerhoff, her attorney demanded these things a bit too late.
Under the Federal Rules of Civil Procedure, all parties must participate in a discovery conference and submit a discovery plan stating the parties’ views and proposals on issues regarding the disclosure and discovery of electronically stored information (ESI), including the form or forms in which it should be produced. This discussion is necessary because the Federal Rules allow ESI to be produced in any reasonably usable form if no specific request is made that it be produced in its native form. It is important to remember that a party may not change ESI’s format in order to make it more difficult for the opposition to effectively use. Neither Ms. Brinckerhoff’s attorney nor the Town’s attorney raised these issues at the time of the discovery conference.
The court provided some solace for the plaintiff despite the initial failure to discuss the disclosure of ESI. According to the Court the parties have a mutual obligation to discuss the issue at the discovery conference. Failure to discuss the production of ESI at the discovery conference does not mean that its production cannot be compelled; it just makes it a heck of a lot harder. The Court noted that there are some situations where the timing of a documents creation or editing was a critical issue, and without metadata a party would be unable to confirm or contradict this timing. In regards to plaintiff’s demands, the Court compelled the production of metadata for a single document, Ms. Brinckerhoff’s personnel review.
Failure to discuss or request that ESI be disclosed in a specific format at the discovery conference, subjects a later moving party to a “heightened burden” in showing the necessity of the information. Failure to discuss these issues may lead to sifting through hard copies or pdf’s and a motion to compel.
Michael Tucker Jr. is a 3L at Seton Hall University School of Law.
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April 6, 2011 at 9:57 PM
Even though the request came in after the conference, can’t it be argued that town tried to make life more difficult for the plaintiff by giving her the printouts? If the town had the ability to print all of the emails, then they must have still had them in an electronic format. It seems to me like the town complied with the late request, but did so in a way to make it harder to use the discovery. This would seem to be against the rules too.