If a defense production is tendered as electronic data in PDF form, non-searchable and without metadata, does it meet the discovery requirements of Fed.R.Civ. Pro. 34? Or do plaintiffs have grounds to object and request an order of court compelling the production in native file format?
This question is but one issue at hand in an order dated November 7, 2013 in Crissen V. Gupta, et al., No. 2:12-cv-355-JMS-WGH (S.D. In. 2013).
The defense production was produced in PDF formatting without metadata. However, plaintiffs noted that the documents’ file names ended in “.doc” and “.docx,” indicating they were originally Microsoft Word documents. If they had been tendered in Word form, their native form, metadata would have been included in the production (such as the date and time the document was created, when it was altered, if and when it was printed, etc.) Defendant countered that the plaintiff electronic discovery request did not specify in what format to produce the data, did not ask for native files or Word documents and that he was not required to produce the data in more than one format.
The court looked to Fed.R.Civ.P. 34, which allows for discovery requests to specify the format of the production, and the court noted that plaintiff’s requests did not specify native format or Word format. However, Rule 34 also states that a “party must produce documents as they are kept in the usual course of business…if a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” The court cited an Advisory Committee Notes from 2006, which noted that parties are not free to convert ESI into an inefficient format.
Therefore, the court needed more information. If the defendant only had the electronic data in PDF format, then the production was acceptable. If he had the electronic data in Word format and purposely converted the Word files to PDF files, then he must produce the data again in native format with metadata.