Motion To Compel Native Production Denied Because Native Was Not Specified
- ILS Team
In Smith v. TFI Family Services, Inc., No. 17-02235-JWB-GEB (D. Kan. Sep. 4, 2019), a Kansas Magistrate Judge denied Plaintiff’s Motion for Order Against Defendant to Show Good Cause Why it Should not be Held in Contempt and Motion for Sanctions for failing to produce ESI in native format with associated metadata. The denial was based on Plaintiff’s failure to identify a ‘specific and definite’ section of the Court’s June 8, 2018 Order requiring ESI to be produced or requiring records to be produced in native format with associated metadata and also that Plaintiff failed to show why re-production of the PDF documents in native format with associated metadata is relevant.
In a case involving alleged abuse of a child, the Court granted in part and denied in part a Motion to Quash on June 8, 2018, ordering Defendant to produce certain records by July 31, 2018. Defendant timely produced the records and after a review of the records submitted in-camera, the Court ordered Defendant to produce the documents to Plaintiff.
On May 6, 2019, Plaintiff filed a Motion arguing that Defendant failed to comply with the June 8, 2018 order because Defendant’s production did not contain six identified types of ESI in native format with associated metadata but rather, Defendant produced the court-ordered ESI in PDF format on a USB flash drive. The plaintiff asked the Court to issue an order: (1) requiring DCF to show good cause for why it should not be held in contempt of the Court’s June 28, 2018 Order; (2) requiring DCF to show good cause why it should not produce the requested ESI; and (3) imposing various sanctions on DCF pursuant to Fed. R. Civ. P. 37(b)(2)(A) for not obeying a discovery order.
In ruling on the Order, the Court notes that “the subpoena asks for the records to be produced in ‘electronic format,’ but gives no specifics regarding whether the format should be PDF or native format with metadata intact.” Further, “[t]he Court is at a loss as to why Plaintiff would believe the June 8, 2018 Order required Defendant to produce the six above types of ESI when the subpoena did not specify it and the matter was not presented to the Court for consideration.” As a result, the Court found that “the production of records in PDF format on a USB flash drive adequately satisfied [Defendant’s] obligation under the June 8, 2018 Order, the subpoena and Rule 45” and that “there is no occasion for the undersigned Magistrate Judge to certify facts to the District Judge or to issue an order for [Defendant] to show cause why it should not be held in contempt.”