It has become clear that when plaintiffs ask for electronic data and ESI productions in TIFF format with metadata from the initial requests, courts will frequently enforce this formatting if disputes later arise. For a recent case, see the New York state court opinion dated January 24, 2014 Brandofino Commications, Inc. v. Augme Technologies, Inc., 2014 NY Slip Op 50077(U).
In the case, plaintiff eDiscovery requests were sent to defendants, requesting all ESI production be done in text-searchable TIFF imaging format with metadata. As most of the expected production was to be email threads and email chains, the plaintiffs sought the Author, Date and Receipt (along with any other information from the metadata). Both plaintiffs and defendants used Concordance eDiscovery software to search and review electronic data.
Discovery started without a hitch, as defendants made an initial production in the TIFF format plaintiffs had requested with metadata. Defendants also received plaintiff ESI production in the very same formatting, ready to be reviewed in Concordance software. Discovery continued and about a year and a half later, defendants supplemented their initial production. However, this time, the defense production was tendered in PDF formatting without metadata.
Plaintiffs attempted to resolve the issue with defendants to no avail, so they motioned the court to order defendants to produce the supplemental production in the same manner as before. Defendants objected, claiming they were now offering the emails and electronic data in the “ordinary course of business,” and that their situation had changed and they no longer wished to incur the costs of formatting the data, which they estimated to be at $15,000.
The court rejected all of defendants’ objections and ordered the supplemental production be tendered in the formatting as requested by plaintiffs. The court noted that:
- The producing party generally bears the costs of production, including electronic discovery;
- That the defendants did not initially object to the formatting and produced a great deal in this formatting, so it is disingenuous to complain now;
- It is not prudent to unilaterally change the discovery production in the middle of the process;
- Due to the sheer volume of documents, accessible format is necessary;
- Defendants continue to receive plaintiffs’ data in this format, but seek to deny plaintiffs the same benefit;
- The blanket assertion that the cost of $15,000 is unduly burdensome was not backed by any evidence, particularly when the damages are alleged to be over one million dollars. The court made its determination without prejudice to future cost-shifting motions.
ILS – Plaintiff Electronic Discovery Experts
Tip of the week: In most cases, plaintiffs should request native file format with metadata from the very beginning of electronic discovery.