If you have an eDiscovery order that directs a party to produce “all internal communications…” and “all electronic communications…” are email attachments included? The answer is clearly yes, but what if a party had been producing ESI in PDF format, not native file format-does that excuse the failure to tender email attachments?
This was what the defense was hoping the court would rule in the affirmative in Skepkek v. Roper & Twardowsky, Case No. 11-4102-KHV (D. Kan. January 27, 2014). In this attorney fee sharing dispute between firms, the defendants had tendered its ESI production in PDF format. Plaintiffs did not dispute the formatting, but complained that the email attachments were not produced and noted that had defendants produced the emails in native file format, the attachments would have been part of the production.
What arguments could the defense claim to avoid producing the attachments? They argued that since the production was tendered in PDF format, Plaintiffs should have objected to this at the outset and now have waived their right to seek native file formatting. Further, they argued that their email server was not capable of producing the attachments to the emails all at once and asked Plaintiffs to request each specific attachment sought. Finally, they complained further production would be unduly burdensome.
Valid arguments or grasping at straws? The court cuts through the distractions to get to the heart of the matter: this is not a case about ESI formatting, it is simply about what was produced (or what was not produced). “Defendants do not have the leisure of picking and choosing what responsive documents to produce.” As the court order directed them to include all email communications, this included email attachments. Plaintiffs would have accepted the email attachments either in PDF format or native file format—formatting was not the issue. The court ordered Defendants to comply with the discovery order and produce the email attachments in accordance with Rule 34(b)(2)(E)(ii): either in the manner in which they are ordinarily maintained or in reasonably usable form.
Did you know? The average email attachment is copied six times, according to The American Genius.