In Rick James, et al. v. UMG Recordings, Inc., No. 11-cv-01613-SI (MEJ) (Dist. Court, N.D. California Nov. 8, 2013), plaintiff, the estate of the late singer Rick James, alleges defendant UMG Recordings, Inc. underpays licensing royalties for digital downloads of recordings. The plaintiff eDiscovery requests sought Excel-versions of electronic documents from defendant calculating royalties, but defendant refuses, saying the request requires the creation of new documents.
The court noted Fed. R. Civ. P. 26(f) requires parties discuss electronic document format for production and that under Fed. R Civ. P. 34(b)(2)(e):
ii. If there is no specific form requested for electronic documents, a party must produce the documents in the ordinarily maintained or a reasonably useable form;
iii. Parties do not have to produce electronic documents in more than one form.
While plaintiffs used Rule 34 language when requesting electronic documents, they did not specify what form the documents take, so the court denied the motion to compel. If plaintiffs had specified the form for electronic documents, the implication is the decision would be different. The streamlined structure for document production as provided by Rule 26 and Rule 34 is clearly important to the court, and the court needed compelling reasons not provided to alter the agreement.
In addition, the defendants already produced the requested electronic information in two other formats, and the court felt plaintiffs did not provide a sufficient reason to warrant a third production form. The plaintiffs admit they are able to convert the electronic documents already produced by defendants into the desired new format; however, the court suggested plaintiffs could meet with defendants to discuss how to create the desired format, as long as plaintiffs paid for the new expense.
Plaintiffs still in the process of preparing a Rule 26(f) Report and discussing eDiscovery with defendants must consider exactly what they need from electronic documents. If the information format required is somehow different from the ordinarily maintained version, it is critical for plaintiffs to specify format in the requests for production. If a specific form is lacking, courts are reluctant to grant production of a format outside the ordinarily maintained form.