In Apex Colors, Inc. v. Chemworld International Limited, Inc. et. al., Case No. 14-273 (N.D. Indiana, June 16, 2016), a trade secret/misappropriation case involving several claims and counterclaims between the parties, the Northern District of Indiana weighed in regarding native format Excel spreadsheets after the parties engaged in numerous discovery disputes.
In January 2016, Plaintiff served discovery requests upon Defendants, including document requests; Defendants did not respond until nearly two months later after Plaintiff filed a motion to compel. After a meet and confer, Defendants supplemented their responses. The parties met again in May when Plaintiff alleged that Defendants did not fully respond; at that meeting, Plaintiff provided a detailed list of outstanding discovery. However, Defendants again did not respond, and Plaintiff filed a second Motion to Compel, which included a request for Excel spreadsheets to be produced in native format well as sanctions of costs and fees in bringing the motion.
The original request for production sought spreadsheets in native format for Excel, however, Defendants produced them in PDF format, and they were not searchable. Plaintiff sought an order compelling production in Excel so that Plaintiff could sort the data by field. Defendants responded that Plaintiff was not entitled to ESI in native Excel format without providing legal support for that assertion.
The court noted that Defendants did not object to production in Excel format in their response to the document request, and therefore, they had waived the objection. The court further noted that FRCP 34(b) requires production of ESI as it is kept in the usual course of business or in a reasonably usable form. The court found that PDF format was not reasonably usable, and Defendants made no showing that it would be burdensome to produce the spreadsheets in Excel. Accordingly, the court granted the Motion to Compel with respect to production of the spreadsheets in Excel format. The court also found that failure to produce the spreadsheets in native format was sanctionable, and it awarded Plaintiff the costs and attorneys’ fees for seeking such production (although not for the remainder of the motion to compel).