In City of San Jose v. JUM GLOBAL, LLC., Case No. 16-cv-01462-VKD (N.D. Ca. July 11, 2018), the United States District Court for the Northern District of California granted Plaintiff’s motion for an order compelling Defendant to produce its responsive electronically stored information (“ESI”) in native format after Defendant had previously produced its responsive ESI in the form of searchable PDFs.
In its first set of document requests to Defendant, Plaintiff specified that electronically stored documents, including email, shall be produced in their native format. While Defendant did not object to this demand, Defendant subsequently produced its responsive ESI in the form of searchable PDFs. Following the initial production of ESI, Plaintiff sought an order compelling Defendant to produce all responsive emails in native format.
At a July 10, 2018 hearing, counsel for both parties acknowledged that before Plaintiff’s first set of document requests, both parties had produced emails in searchable PDF format without objection from the opposing party. Further, the court noted that the form of ESI production was not discussed during the Rule 26(f) conference nor had the parties reached an agreement on the form of ESI production before Plaintiff’s first request for documents.
In ruling on Plaintiff’s motion, the court held at the outset that Defendant’s production of emails in searchable PDF format failed to comply with the requirements of FRCP Rule 34(b)(2). Specifically, Rule 34(b)(2)(D) requires a party responding to document requests to object to a requested form of production for ESI. Further, Rule 34(b)(2)(E)(i) requires a party to produce documents as they are kept in the ordinary course of business (in this case, native file format for email) or to organize and label its production to correspond to the categories of documents sought in the requests.
Although holding that Defendant’s conduct failed to comply with the requirements of Rule 34(b)(2), the court noted that Defendant’s production of ESI in searchable PDF format was not unreasonable given the parties prior course of conduct. The court further held that a factor in granting the order was the fact that Defendant represented that it would not be unduly burdensome to re-produce its email production in native file format. As such, the court ordered Defendant to re-produce its email production in native format no later than 10 days after the hearing. In addition, Plaintiff, at Defendant’s request, must also re-produce its email production in native format within 10 days of receiving any such request from Defendant.
While the order is ostensibly a victory for Plaintiff, the court’s reasoning offers important insights for handling future ESI format disputes in a more efficient and effective manner. First, the court’s understanding tone towards Defendant’s non-compliance with Rule 34(b)(2) is based on the parties prior course of conduct in producing and failing to object to ESI in the form of searchable .pdfs rather than in native format. This analysis underscores the necessity of reaching an agreement with the opposing party on the form of ESI production as early as possible in the case and before any non-native format ESI is produced. In addition, it is imperative that the form of ESI production be raised and discussed during the Rule 26(f) conference. By insisting on the production of ESI in native format from the outset of discovery, the costs and uncertainties of obtaining an order like the one at issue in this case can be significantly reduced.