Court Requires Plaintiff to Produce in Requested Native Format, Rejects PDF Production
In The McDonnel Group, LLC v. Starr Surplus Lines Ins. Co., Civil Action No. 18-1380 (E.D. La. October 3, 2018), the United States District Court for the Eastern District of Louisiana granted Defendant’s motion for an order compelling Plaintiff to produce its responsive electronically stored information (“ESI”) in native format after Plaintiff had previously produced its ESI in PDF format.
In its first Request for Production, Defendant sought the production of construction schedules in native format. Under Federal Rule of Civil Procedure 34(b)(1)(C), the requesting party “may specify the form or forms in which electronically stored information is to be produced.” In this instant matter, Defendant did so in its Request for Production, specifying production of “all construction schedules for the Project in their native format (as native files).”
Plaintiff, as the responding party, then had an opportunity to object to the request by “stat[ing] with specificity the grounds for objecting to the request, including the reasons.” Fed R. Civ. P. 34(b)(2)(D). In addition, “[t]he response may state an objection to a requested form for producing ESI. If the responding party objects to a requested form…the party must state the form or form it intends to use.” Id.
In its responses, however, Plaintiff failed to comply with any of the unambiguous requirements of Rule 34. Rather than asserting specific objections, Plaintiff merely asserted a “mindlessly deficient, boilerplate, stonewalling objection that the request was ‘vague, overly broad, and not reasonably calculated to lead to the discovery of admissible evidence.’” By failing to properly object to the production of files in native format, the court held that Plaintiff thus waived any objections as to the format of the ESI to be produced. As such, the court granted Defendant’s motion and ordered Plaintiff to produce all responsive ESI in native format.
While the court’s reasoning rested on Plaintiff’s failure to comply with the requirements of FRCP 34, the court, in dicta, provided insightful commentary on native format ESI generally, stating that the need for production in native format, with its associated metadata, is “self-evident.” According to the court, “metadata provides information such as the ‘author, date/time of creation and date modified,'” whereas the PDF format chosen by the Plaintiff are “merely pictures of the materials that do not provide the metadata.”
Finally, the court addressed the deficiencies of Plaintiff’s Rule 34(b)(2)(E)(iii) argument, which provides that “[a] party need not produce the same electronically stored information in more than one form.” The court holds that Plaintiff lost this protection when it failed to object to the production of native files in its written response or state in its written response that it would produce all requested materials in PDF form, as required in Rule 34(b)(2)(D). Further, the court states that permitting a responding party to arbitrarily choose a production format would disrupt and undermine the “orderly request/response/objection/confer structure and requirements . . . of the Rule concerning ESI.”