In United States v. Pacific Gas & Electric Co., Case No. 14-00175 (N.D. Cal., Mar. 28, 2016), the California Northern District Court was faced with determining whether a letter requested pursuant to subpoena should be ordered produced in native format. In this case, Plaintiff U.S. federal government brought charges, including an obstruction of justice charge, against Defendant public utility after a 2010 fatal natural gas pipeline explosion.
One of the many items requested by the U.S. pursuant to subpoena was “an electronic version” of a letter dated April 6, 2011 from Defendant to the NTSB. The U.S. claimed that the Defendant had previously improperly withheld the letter, which was thereafter only produced in a PDF version. The U.S. argued that the letter related directly to the heart of the obstruction count, and that the production in native format would provide the associated metadata information as to who worked on the letter and when, and information as to previous versions and comments to earlier versions. The U.S. further asserted that Defendant had kept the author and editors of the letter “a mystery” and the native file production would provide this information. Defendant did not dispute the letter’s relevance, but simply argued that a copy of the letter had already been provided.
The court analyzed the request for native file production in relation to the factors laid out in U.S. v. Nixon, 418 U.S. 683 (1974), which factors determine whether an order should issue for production pursuant to subpoena. The first factor, adequate specificity of the request, was found to be satisfied – the court found a sufficient likelihood that the metadata would supply the information sought as to who worked on the document and when. The second factor, the evidentiary value of the request, was also found to be satisfied – the native file information would go to show which PG&E employees worked on the letter and were involved in the alleged obstruction of the NTSB investigation. As to the third factor, the court did not foresee any issue with the admissibility of the native file data (citing United States v. Lizarraga-Tirado, 789 F.3d 1107, 1110 (9th Cir. 2015) and a Sedona Conference commentary in finding that the native metadata was unlikely to be considered hearsay). Concluding that there was sufficient likelihood that the native file sought contained relevant and admissible evidence, the court granted the government’s request for native file production of the letter.