In the recent multi-district litigation In re: Syngenta AG Mir162 Corn Litig., MDL 2591, No. 16-2788-JWL (D. Kan. Sept. 25, 2018), the United States District Court for the District of Kansas denied the request of party Louis Dreyfus Company Grains Merchandising LLC (“LDC”) to allow it to produce substantial amounts of electronically stored information (“ESI”) in native format.
The court ordered LDC to complete its document production by September 6th. On August 31, 2018, LDC sought an extension to complete its production but did not mention any difficulty in producing the documents in TIFF format as envisioned by the ESI Protocol Order (the “ESI Protocol”).
On September 5th and 11th, LDC produced a large number of responsive documents in native format, asserting that it did so in order to produce the documents as expeditiously as possible due to the fact that converting the documents to TIFF adds “substantial time to production.” In response, party Syngenta complained to LDC about the production format due to its failure to comply with the ESI Protocol.
On September 24, 2018, LDC asked the court to relieve it from the strict production requirements of the ESI Protocol, arguing that the court should permit an exception because LDC “ha[d] been required to produce a huge number of documents under extreme time pressure” and that it would not be able to convert all of its ESI to TIFF format before the production deadline.
In rejecting LDC’s request to complete its document production in native format, the court’s reasoning rested on four grounds. First, the court held that when ESI is produced in TIFF format, it is easier to process and enables the litigation process to run smoothly. As such, the court rejected LDC’s argument that the lack of TIFF format ESI would pose only a “minor inconvenience” to other parties.
Second, the court rejected LDC’s request on the grounds that it failed to follow the clear and unambiguous provisions of the ESI Protocol Order. Specifically, the controlling ESI Protocol Order “require[d] a party seeking to deviate from the image/TIFF format production to ‘promptly’ notify the requesting party as soon as it identifies a source of data to which the protocol should not apply (because it would be unduly burdensome or impractical).” Here, the court noted that LDC neither notified any party or the court prior to producing its ESI in the non-compliant native format nor mentioned any of its perceived formatting issues in any previous briefs or discussions.
Third, the court held that LDC offered no evidence to support its “burdensome” and “impracticality” arguments. To the contrary, LDC informed the requesting parties on September 14, 2018 that converting the native files from its previous production would take approximately two weeks, thus enabling LDC to meet the September 28, 2018 production deadline for TIFF ESI. Thus, the court remained unconvinced that it was impossible for LDC to meet its production deadlines.
Finally, the court grounded its holding in the need to keep the case moving forward. By requiring LDC to comply with the ESI Protocol Order and produce its TIFF format ESI by an October 2018 deadline, the parties could still use the ESI in a meaningful way while allowing currently-scheduled depositions to go forward on time.