When Does A Party Have to Produce ESI In Native Format?

When Does A Party Have to Produce ESI In Native Format?

The form of ESI production is specified in Rule 34, subject to court-approved agreement between the parties. If a particular format is important to a requesting party, it is critical to stipulate it unambiguously early on. If the party fails to make that stipulation, it will most likely be too late to ask for reproduction of documents that have already been produced although not in the format the requesting party expects, unless the producing party is in violation of the very flexible Rule 34.

In Melian Labs v. Triology LLC., the parties filed a case management conference statement (referred as the “Joint Rule 26(f) Report”), and informed the district court that:

With respect to the production of electronic data and information, the parties agree that the production of metadata beyond the following fields [is] not necessary in this lawsuit absent a showing of a compelling need: Date sent, Time Sent, Date Received, Time Received, To, From, CC, BCC, and Email Subject. The parties agree to produce documents electronic form in paper, PDF, or TIFF format, and spreadsheet and certain other electronic files in native format when it is more practicable to do so.

During a 2-month period following the conference, Melian produced 1,218 pages of documents in PDF format. Triology complained about the format, claiming that these PDFs were stripped of all metadata in violation of the agreement of the parties and that the spreadsheets were not produced in their native format.  Melian disagreed and the parties filed joint letters to the court to address the sufficiency of Melian’s ESI production.

As with the e-mail production, Triology contended that Melian’s production of large PDF image documents was violative of FRCR 34(b)(2)(E) because they were not produced in their native format and were not reasonably usable. The court pointed out that Rule 34(b) only requires that the parties produce documents as they are kept in the usual course of business or in the form ordinarily maintained unless otherwise stipulated. The Joint Rule 26(f) Report was a stipulation. But the Report did not require that all ESI be produced electronically. Instead, it stated that ESI may be produced in paper, PDF or TIFF. Production in electronically searchable format certainly would ease Triology’s review, but that was not required by the Report.  E-mails produced by Melian in paper or PDF contained text fields prescribed by the Report and the e-mail production was thus not deficient. To the extent that some e-mails had these fields cut off or it was not apparent from the face of the e-mail, the court instructed Triology to serve a request to Melian for further providing the missing information.

As for the spreadsheets, Triology contended that Melian had failed to comply with the Joint Rule 26(f) Report by refusing to produce all spreadsheets in their native format. The court again held against Triology, stating that the Report did not require the production of ESI in their native format. In this case, when some of the spreadsheet printouts were difficult to read, it produced them in native format (Excel) upon request by Triology. The court approved of this remedial procedure and held that Melian did not need to produce all spreadsheets electronically in native format according to the stipulation of the Report.

The court was noticeably agitated by this kind of complaint asking for the court’s involvement.  The court believed that these disputes could have been easily resolved by the parties without seeking court intervention. Here is a quote from the last sentence of the opinion: “the parties are ordered to meet and confer in good faith before seeking further court intervention.”

The bottom line is that if a requesting party wants to have documents produced in their native format, it should make a clear and unambiguous stipulation as to the form of production in order to override the choices afforded to the producing party by Rule 34. Of course, the stipulation, usually reached at some case management conference, must be agreed upon by both parties and approved by the court after the burden and proportionality issues are considered by the court. And very importantly, stay on the good side of the court by trying to resolve these discovery issues without going to the Court for intervention.

Gang Chen is a Senior Segment Manager in the Intellectual Property Business Group of Alcatel-Lucent, and a fourth-year evening student at Seton Hall University School of Law focusing on patent law.

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