If a CD disk is produced with electronic data in native format but counsel cannot open it on a laptop, does it fail to meet the requirements of electronically stored information in Federal Rule 26? That was the question in the Order on Duces Tecum Production dated November 12, 2013 in Benado v. Thyssenkrupp Logistics, Inc., No. CIV 12-1143JP/LFG (D. New Mex. 2013).
In a brief order issued after a telephonic emergency hearing, plaintiff objected to the form of ESI an expert witness brought with him for an oral deposition to satisfy the subpoena duces tecum. The ESI production was contained on a CD disk and included electronic data in native file form. The problem? Plaintiff’s attorney could not open the disk on his laptop during the deposition and sought paper documents. He asserted that since he could not open the data, he could not read the documents and could not proceed with the deposition.
This conundrum led to an emergency telephonic hearing with the magistrate judge, who did ask the practical question of whether anyone had any other computer or device that could open the CD disk. Apparently, no one did. The magistrate then went on to inquire as to whether the parties had a meet and confer conference in accordance with Fed. R.Civ.Pro. 26(f)(3)(C), and whether the subpoena duces tecum noted the form in which the production was to be tendered. The subpoena neither specified what form the data was to be produced, nor did the parties discuss this in a meet and confer.
As a result, the court held that the expert witness’ production was proper and in the regular course of business, as he kept his data in electronic format, not paper documents. Under such circumstances, it was appropriate for the expert witness to respond to the subpoena duces tecum with a CD disk. “Had [a paper format request] been made, the Court could have ordered production in paper format although it would have imposed the conversion costs of production on the requesting party.” Id.