Pdf? Jpg? Docx? Html? Wtf?

Pdf? Jpg? Docx? Html? Wtf?

Legal counsel for both parties left the judge frustrated from unprofessional conduct and lazy discovery techniques.  Judge Hollows stated, “In the future, the court will decline to hear any discovery matters where the Federal and Local Rules are not strictly followed.”  So, when it comes to electronic discovery being strictly followed, keep in mind the following: 1) address the issue EARLY; 2) keep documents in easily accessible format; and 3) supply metadata for pivotal documents.

In the facts, Brinckerhoff worked for the Town of Paradise as a volunteer firefighter.  Subsequently, she was appointed to a civil service position and eventually terminated. She brought suit for wrongful discrimination and requested documents in their original format.  Included in the documents was an evaluation of plaintiff while she worked for the Town.

In Plaintiff’s motion to compel, she argued that defendant should be required to produce responsive emails in their native format (not hard copy).

The Town correctly responded by stating that plaintiff failed to address electronic discovery and “native format requests” at the discovery conference, so defense counsel was not given proper notice.  Judge Hollows took it one step further and declared that both parties’ counsel had the responsibility to raise the issue of electronic discovery in the discovery conference or discovery plan; thus, defendant could not push the blame onto plaintiff.

In Aguilar, the court found that because the parties had not followed a mandate imposed by the Federal Rules to resolve electronic issues in advance, then the party now wanting the data faced an uphill battle in a motion to compel.  See Aguilar v. Immigration and Customs Enforcement Div. of U.S. Dept. of Homeland Sec., 255 F.R.D. 350 (S.D.N.Y. 2008).  For plaintiff’s motion to compel, the court automatically heightened the burden because electronic discovery was not addressed at the discovery conference.

With this heightened burden, the court looked to the amended Federal Rule of Civil Procedure 34.  It states that original format is not necessary, as long as the document is produced in a reasonably usable form.  A “reasonably usable form” is not acceptable if it is more difficult or burdensome for the requesting party to use efficiently in litigation.  See Rule 34(a)(1)(A). In result, the court held that defendant did not have to produce the original format, because plaintiff would not be unfairly burdened to review the emails in the available hard copy.  Plaintiff had failed to show that any other production in electronic format would result in useful information.

One caveat to this idea of native format was the company’s evaluation of plaintiff while she worked for the Town.  The court concluded that metadata and additional format was required for the evaluation, because it may result in pivotal discovery for the plaintiff. This additional documentation would reveal the date the document was created and whether it was modified, which may be crucial for plaintiff’s discovery.

Overall, Defendant does not have to produce electronically stored information in its original format.  Metadata is ONLY necessary for the evaluation of plaintiff because it may provide pivotal discovery information.

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Comments (1):

  1. This decision is interesting because it really makes you look at the different layers of electronic discovery and shows you that you have to truly understand what you are asking for in order to get what you want. It makes you think about what the original format of a document or data means and what you can learn by having it, if anything. It also shows you that producing the original format of a document might not always be easy, so if you think you need it you better have good reason. It’s a waste of time and resources otherwise. I think this decision draws a good balance between granting a party access to what they reasonably need and not putting an excessive burden on the opposing party.

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