When Must a Defendant Redo its ESI Production?
Our last post reviewed the disagreement over the “Concordance Load File Stipulation” that the parties entered into in the case EEOC v. SVT, LLC d/b/a Ultra Foods, Cause No. 2:13-CV-245-RLM-PRC (N.D. Ind. April 10, 2014). Despite the agreement with Plaintiff that the load file production would be tendered in native format, Defendants failed to produce load files and failed to produce the documents in native formatting. In fact, the production was neither in the agreed-upon native formatting nor the manner in which it was kept in the usual course of business.
Defendant argued (after it was tendered) that the ESI in such formatting was not “reasonably accessible because of undue burden or cost” under Rule 26(b)(2)(B). Defendant also justified its production by claiming it did not have the necessary programs to comply with the request or stipulation (the court helpfully pointed out that such a claim was without evidentiary support.) Here’s the court’s analysis:
1. Under Rule 34(b)(1)(C), Plaintiff is entitled to have filed in form specified. In this case, it was native files and near-native files.
2. The electronic data was under control of Defendant within the meaning of Rule 34 (even though the data was housed elsewhere) because they had a right to obtain the documents.
3. The court found Defendant did not meet its burden under Rule 26(b)(2)(B) to show the documents were not reasonably accessible to avoid re-doing the production or cost-shifting. The court noted that Defendant should have objected or sought a protective order if it could not comply with “Concordance Load File Stipulation” that governed the ESI production. A party that responds with a production in the formatting of its choice, and not identifying that form in advance as required in Rule 34(b), runs the risk of having to re-do the production. The court also noted that Defendant requested and received three extensions to produce the data, and yet not once did Defendant claim an objection to the formatting.
The court found that Plaintiff was entitled to ESI fully searchable and ordered that Plaintiff’s internal computer forensic expert explain to the Defendant the deficiencies and the options to properly deliver the data. The parties were also ordered to conduct an additional meet and confer and file a joint status report.
Did You Know: According to a recent study, 17 percent of Americans create a new email address every 6 months.