To Successfully Enforce Compliance, Plaintiffs Must Specify Early The Exact Format of eDiscovery Required

20 Dec 2013

Native format electronic documents are often the source of disputes between the parties during discovery.  One common issue is defendants intentionally providing electronic documents in a format designed to remove valuable metadata information.

To overcome a defendant’s efforts to obstruct discovery, plaintiffs should clearly state at the outset their preferred eDiscovery format and metadata needs as well as document any actions by defendants that circumvent prior agreements. Using a Rule 26(f) agreement is an excellent avenue to ensure format and metadata requests are upheld since the conference is designed to encourage party cooperation during discovery. An addition method, where appropriate, is the use of computer mirror imaging orders to make copies of hard drives and the electronic data contained therein. While some of this production may go to third-party neutrals or the courts for in camera reviews, computer mirror imaging preserves evidence for plaintiffs to avoid discovery evasion and spoliation.

Current Case Law involving Native Format Requests

  • American Home Assurance et al v. Greater Omaha Packing Company Inc.[1] Plaintiff argued that Defendant intentionally hid electronic documents, noting the extremely small number of emails produced. The court ordered Defendant to disclose all sources and search terms used during discovery.
  • Saliga v. Chemtura Corporation.[2] Plaintiff requested native format electronic documents in eDiscovery over Defendant’s objections. The court allowed native format production unless Defendant had a compelling reason otherwise, and simply objecting on the grounds that a production request should use a more commonly produced format was unpersuasive.
  • RPM Pizza, LLC v. Argonaut Great Central Insurance Company.[3] In a second motion to compel discovery, Plaintiff alleged Defendant refused to provide all discoverable documents, and the produced documents did not match the specified formats. The court discounted all offered excuses by Defendant and granted Plaintiff’s motion to compel.
  • Home Instead, Inc. v. Florance.[4] Defendant failed to produce electronic documents with metadata during discovery.  The court granted Plaintiff’s motion to compel and noted that Defendant’s lack of compliance was inadequate. The Court ordered Defendant to create an affidavit explaining the discovery production issues and would investigate Defendant’s culpability in failing to maintain evidence as ordered.
  • Rick James, et al. v. UMG Recordings, Inc.[5] Plaintiff and Defendant disputed royalty payments for digital download recordings of the late singer Rick James. However, in this case, because Plaintiff failed to specify a format for electronic documents, the court denied a motion to compel.

In short, when Plaintiffs set forth their electronic document needs specifically and cooperatively, courts around the country are more likely to enforce compliance from recalcitrant defendants. The most critical phase for plaintiffs is during the Rule 26(f) conference, where the parties have the opportunity to agree on both the types of eDiscovery documents produced as well as the specific formats for electronic documents.  Having such ground rules in place, should defendants violate a Rule 26(f) agreement or simply refuse to cooperate, courts much more willing to enforce productions in the requested formats.

Electronic Discovery Experts Exclusively Supporting the Plaintiffs’ Bar

Plaintiff electronic discovery requires attention to the quickly developing legal field of electronic information. Visit our plaintiffs’ blog or contact our team of like-minded professionals for up-to-date case law on eDiscovery software, expert computer forensics, issue coding, document review and  international language services.

[1] No. 8:11CV270 (Dist. Court, D. Nebraska Sept. 11, 2013).

[2] No. 3:12cv832 (RNC) (Dist. Court, D. Connecticut Nov. 25, 2013).

[3] No. 10-684-BAJ-SCR (Dist. Court, M.D. Louisiana Nov. 15, 2013).

[4] No. 8:12CV264 (Dist. Court, D. Nebraska Nov. 8, 2013).

[5] No. 11-cv-01613-SI (MEJ) (Dist. Court, N.D. California Nov. 8, 2013).