Court Compels Production in Native Format Over Objection of California Department of Education
In Morgan Hill Concerned Parents Association, et. al. v. California Department of Education, et. al., Case No. 11-3471 (E.D. Cali Feb. 1, 2017), two associations of parents and children with disabilities sued Defendants alleging violations of the Individuals with Disabilities Education Improvement Act by systemically failing to provide free appropriate public education to disabled children. During discovery, Plaintiffs filed a Motion to Compel and for sanctions, and Defendants filed a Motion for Protective Order and for sanctions.
The disputes arose from discovery requests Plaintiffs sent to Defendants in which they sought email production in native format with metadata. Defendants responded to the requests with boilerplate objections, but did not object to producing the emails in native format. However, five months later in October 2013, Defendants submitted a proposed protective order to the court, and in the letter enclosing the order, Defendants pointed out that in determining whether metadata must be produced required a balancing test, and because metadata could not be withheld or redacted when native format was produced, Defendants implied that privileged metadata could only be protected by withholding all the data. In 2016, Defendants finally submitted a formal objection to production of ESI in native format. Plaintiffs argued in their Motion to Compel that they were entitled to specify the format of the data they requested and that Defendants waived any objection by not making it until three years had passed. Defendants argued that it timely objected and that it had produced the information in a reasonably usable format. Defendants then sought the protective order.
The court held that Plaintiffs were entitled to ask for the ESI in native format, and that Defendants could not ignore the request. The court further held that Defendants’ objections were not timely; however, the court did not find that they had been waived. With respect to Defendants’ contention that the requests were burdensome and sought irrelevant information, the court disagreed. Defendants’ burden, the court said, was of their “own making,” as they had already produced all the data in the format of their own choosing rather than the format requested. Further, Defendants had already produced other documents in multiple formats without objection. The court did not directly address relevance, as the presiding judge had already ruled that metadata must be produced intact with native format ESI, and as the court had already ordered native format to be produced, which cannot be separated from the metadata. The court finally held that Defendants had not shown any privilege. Therefore, the court granted the Motion to Compel and denied the Motion for Protective Order.