Denial of Motion to Compel In Native Where ESI Maintained In Both Electronic And Hard Copy Formats
Ortega v. Management and Training Corp., Case No. 16-0665 (D. N.M., Jan. 6, 2017) is a race discrimination, retaliation and FLSA action originally filed in New Mexico state court but removed to federal court. Plaintiff was a former detention officer employed by Defendant to work at the Otero County Processing Center for detention of immigrants. He sued Defendant for allegedly failing to pay him a higher wage upon promotion, and for wrongful (race based) and retaliatory employment termination in violation of the FLSA and the McNamara-O’Hara Service Contract Act.
Plaintiff sent discovery requests to Defendant asking for electronically stored information (ESI) to be produced in the manner in which ordinarily kept in the usual course of business. However, Defendant produced only hard copy documents of its ESI. Plaintiff filed a Motion to Compel production of ESI in native format. At oral argument on the Motion, Plaintiff argued that any documents ordinarily kept electronically should be produced electronically, while Defendant argued that it produced in hard copy all documents ordinarily kept in hard copy and produced in electronic format all documents ordinarily kept electronically. However, Defendant did state that with respect to documents it ordinarily kept in both formats, it produced ESI only in hard copy.
The court noted that FRCP 34 does not require a party to produce documents in multiple formats, nor does it require a party to produce ESI in the form in which it is ordinarily maintained. Rather, the rule requires that the documents be produced in “reasonably usable form,” e.g., the producing party cannot convert ESI into a more cumbersome format. Therefore, because the production did not “run afoul” of FRCP 34, the court denied the Motion to Compel.