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This article was published in Law360 on December 5, 2019. © Copyright 2019, Portfolio Media, Inc., publisher of Law360. It is republished here with permission.
In our digital world, one might think that the production format of electronically stored information, or ESI, in civil litigation is no longer controversial, but recent court decisions make it clear that is not the case.
While Federal Rule of Civil Procedure 34 encourages requesting parties to specify the form in which production is to be made,1 many fail to do so, and the rule provides for production in a form in which the information is ordinarily maintained — its native format — or in a “reasonably usable form.”2 The rule does not define “reasonably usable,” however, leading to disputes.
Courts, in turn, have not consistently resolved these disputes, directing production in native format over objection in some cases while denying it in others. We review a number of recent decisions below and offer guidance and best practices to help ensure that a producing party is not compelled to produce in native format when it would be unduly burdensome and unfair to do so.
The provisions in Rule 34(b) that govern the form of production were added in 2006, but have not been meaningfully amended since. The 2006 advisory committee notes recognize that different forms of production may be appropriate for different types of ESI.
While the requesting party may specify the form of production, the responding party may object, and the parties must meet and confer in an attempt to work out their differences before seeking court intervention. The notes make clear, however, that the rule does not require a party to produce ESI in the form in which it is ordinarily maintained, as long as it is produced in a reasonably usable form. If a party maintains information in a searchable form, it should not produce that information in a form that degrades that feature.
ESI is fundamentally different from paper information in that it is dynamic, created and stored in different forms, and has a substantial amount of metadata and other nonvisible data associated with it.3 Metadata, which is often embedded in a file and may reflect modifications to the document, such as prior edits or comments, may be critical or completely irrelevant, depending on the facts and circumstances of any particular case.
In the typical case, a requesting party does not need, and may not even have the capability to review, all associated metadata such that a native format production makes sense. Native format documents may be difficult or impossible to redact, and impossible to Bates number by page.
For these and related reasons, the industry has settled on a standard form of production that uses PDF documents or Tagged Image File Format, or TIFF, images, accompanied by selected metadata in load files that enable the recipient to search and review the documents on their chosen review platform.
In Smith v. TFI Family Services Inc.,4 where the plaintiff alleged abuse in foster care and failure to protect, the plaintiff sought a contempt order against a third party, the Kansas Department of Children and Families, or DCF, because it produced records in PDF format rather than in native format with all associated metadata. Noting that neither the court’s prior order nor the plaintiff’s subpoena specified the desired format of production, the court looked to the 2006 advisory committee notes to Rule 34, which reference Rule 26(b) governing the scope of discovery.
The court reasoned that reproduction of the ESI in native format with metadata intact would not provide any further relevant information than that already contained within the PDF documents produced. The court also expressed concern about the proportionality and burden of having a third party reproduce documents already produced.
The court found that the plaintiff had not made a particularized showing as to why reproduction in native format with associated metadata would be relevant to the case, and denied the plaintiff’s request. Separately, the court noted that the whole issue could have been avoided entirely had the plaintiff conferred with DCF before it made its production. The court faulted both sides for failing to discuss the form of production.
In Frey v. Minter,5 the court evaluated defendant Robert Minter’s motion to compel additional discovery relevant to his defamation counterclaim. Minter alleged that Anthony Frey did not adequately respond to his document requests because the form of production was not reasonably usable.
Minter had not specified a form for Frey’s production of ESI, and Frey had produced a single 156-page PDF file that contained scans of printed emails and other documents that had been cut and pasted together. The court reasoned that, while Frey’s production was not in the form that emails were ordinarily maintained, it was reasonably usable.
Given Frey’s explanation that he had difficulty producing pre-2016 emails because he used a now-obsolete program to store them and had not found a way to import them into his current system, it appeared that the only way Frey could address the shortcomings of his production would be to reprint the emails and scan them again without cutting and pasting. With the exception of a few redacted email chains that the court directed Frey to reproduce in full, the court found that, with an eye to proportionality, requiring Frey to redo his production in a slightly different format would be unwarranted.
In Mayhew v. Angmar Medical Holdings Inc.,6 which involved claims of unpaid and improper wages, the plaintiff moved to compel production, in native format, of log files and network access records showing her access to Angmar’s computer system. Angmar objected, arguing that the plaintiff had had no access to Angmar’s computer system and that all of her access had been on a company-issued iPad that she had retained, so the plaintiff already had the requested information.
Mayhew argued that Angmar misunderstood how the computer system worked and that the logs would evidence when and for how long she accessed the system. Noting that Mayhew had limited the time scope of her request, the court found Mayhew’s request to be relevant and proportional to the needs of the case, and ordered Angmar to provide the information in native format.7
The plaintiff was not seeking production of all responsive material in native format, just the time-limited collection of access logs. Further, the logs were themselves the relevant evidence.
Similarly, in Dewey v. Bechthold,8 the plaintiff served discovery requests on Scott Nyholm, the defendants’ financial services practitioner, seeking tax returns and financial documents in native format related to the services Nyholm provided to the defendants. Nyholm filed a motion for protective order from producing, among other things, the financial information in native format, arguing that the production would be time-consuming and burdensome and “would threaten to reveal certain proprietary formulae that he uses in his professional practice.”9
The court found that the requested information was relevant because it pertained “to the value of the companies and may reveal whether Defendants engaged in underhanded conduct with regard to the companies and their dealings with Plaintiffs.”10
Citing Rule 45 as requiring a person responding to a request to produce documents “as they are kept in the ordinary course of business,” the court ordered Nyholm to produce the proprietary native format documents, and requested Nyholm to submit a proposed protective order setting forth the additional protections Nyholm believed necessary.11
The court also held that Dewey should reimburse Nyholm for reasonable costs associated with his compliance with the request for production of documents in native format. In this case, the native format itself was important, as it would reveal formulae that generated values that were at issue in the case. where mere printed copies of the spreadsheet would not.
In Lawson v. Love's Travel Stops & Country Stores Inc.,12 a collective action brought on behalf of operations managers employed at Love's Travel Stops, Love’s moved for an order requiring the plaintiffs to retain an e-discovery vendor and produce all responsive documents and associated metadata. Love’s argued that was necessary because the plaintiffs’ productions had been sparse, and because at least one plaintiff had been unclear as to preservation and search mechanisms at deposition.
The court declined to order that the plaintiffs assume the cost of an e-discovery vendor, finding it disproportional to the needs of the case, but, in light of the fact that the plaintiffs had since agreed to produce the ESI they possessed in native format, the court granted Love’s motion in part:
Given our understanding that production in “native format will provide Defendant ... with the metadata necessary to identify the provenance of each document and put it into its proper context,” we will order the plaintiffs to make their ESI productions in native format.13
The parties are best placed to resolve format issues if they are willing to engage in meaningful meet-and-confers. Similarly, to the extent that the parties disputed whether the plaintiffs’ search terms were overly restrictive, the court directed the parties to consult, citing the Sedona Principles for the proposition that e-discovery should be a cooperative, party-driven process.
Finally, in Urban 8 Fox Lake Corp. v. Nationwide Affordable Housing Fund 4 LLC,14 the parties had been arguing for nearly nine months over several discovery issues, including the plaintiffs’ request that two of the defendants' documents be produced in native format. Despite the plaintiffs’ request, the defendants had produced the spreadsheets in TIFF format.
After noting that this type of issue should have been resolved without court involvement had the parties actually conferred in good faith, the magistrate judge continued:
The "default setting" under the Federal Rules of Civil Procedure is production of ESI in native format. But parties can agree to other formats. Unfortunately, that was not going to happen here. Indeed, the stance plaintiff's counsel took on whether defendants could depart from this in the "meet and confer" phase of this dispute was not consistent with the spirit of Rule 37.2.15
The court found neither the plaintiffs’ rationale for native format nor the defendants’ rationale for TIFF persuasive, but ordered native production because the court viewed it as the default format under Rule 34.16
While the court’s view that native format is the default under Rule 34 is seemingly at odds with the text of the rule, as well as with the advisory committee note,17 other courts have taken the same approach.18 While Sedona and others read Rule 34 to say that native format is only one of two options, a party may also produce in a reasonably usable format; e.g., spreadsheets are a type of ESI that become less usable in other formats.
While the particular facts and circumstances of each case inform the results, there are common threads that run through all of the cases.
First, address the form of production as early as possible. Courts expect the parties to be able to work out these issues between themselves, and counsel can only do so if they engage with each other in good faith.
Courts are critical of counsel who bring relatively straightforward disputes to them late and on an incomplete record, without evidence of the burden and costs associated with the production at issue. Even if they cannot resolve the issue between themselves, counsel best serve their clients by presenting a meaningful record in support of their position and their attempts to resolve the issue.
Second, if requesting production in native format, be prepared to make a specific showing as to why native format and metadata of any particular type of ESI is relevant and proportional to the needs of the case. If some aspect of a native format production is meaningful in a particular case, counsel should be prepared to make a specific showing as to why that is the case — what about the metadata or the native file itself is meaningful in the context of the dispute? Does it show when and who lasted edited a disputed document? Is a native spreadsheet necessary to understand the formulas used?
Relevant information must also be proportional to the needs of the case. However, if a native format production would cost 10 times the amount at issue, a court would not likely order such production, especially on a large scale.
Conversely, be prepared with detailed evidence of the burden involved and the lack of relevance if resisting a native format production. Courts will not accept a party’s claim without support, and so counsel must be able to demonstrate how native format production is neither relevant nor proportional under the circumstances.
For example, if redactions are required for regulatory or statutory compliance, counsel should be prepared to explain why redactions are necessary (especially in cases where a confidentiality agreement and order have been entered) and have IT personnel provide affidavits as to why those redactions or safeguards cannot be accommodated in native format without a massive undertaking.
Third, requests for native format production should be carefully tailored to minimize burden. It is unlikely that all types of ESI, or even all of a particular category, will have characteristics that make native format production relevant. Courts are more likely to compel production of ESI in native format when counsel have carefully tailored their requests to only that which they must have in order to reduce any associated burden.
The same applies for fields of metadata. Counsel should not simply request all metadata but, rather, ask for the fields of available metadata and request only relevant, unique fields.
Conversely, if resisting native production, rather than resisting wholesale, counsel may want to considering offering to produce a discrete category or categories of ESI in native format, with defined, selected fields of metadata, to demonstrate their client’s interest in complying with Rule 34. If the party requesting the native format has made any reasonable showing of the need for native format, the court will most likely reach a compromise, so this approach will increase the possibility that counsel’s client defines and can live with that compromise.
Fourth, counsel should be prepared to demonstrate how their proposed form is reasonably usable in that it has all of the search capabilities and content that a native format production would. As Sedona explains, TIFF format when supplied with a load file offers equivalent, sometimes superior, search and organizational features when compared to native format.
Courts, especially magistrate judges who deal with a large share of discovery disputes, have become much more knowledgeable about ESI and what constitutes a reasonably usable format. They have become suspicious of alternative production formats that potentially affect the usability of the ESI and may view that as a failure to engage in good faith.
Finally, while it should not be the default, native format production is not always objectionable. Counsel should appreciate that it may be in their clients’ best interest to produce particular ESI in native format. Spreadsheets that do not require redaction are a common example, as review of spreadsheets in TIFF or printed form is both difficult and time-consuming. Counsel should work with their clients to understand the types of ESI at issue and the ideal format of production for each.
1 Fed. R. Civ. P. 34(b)(1)(C).
2 Fed. R. Civ. P. 34(b)(2)(E)(ii).
3 The Sedona Principles, Third Edition, 19 SEDONA CONF. J. 1, Cmt. 12.a, 169 (2018).
4 Smith v. TFI Family Services Inc., No. 17-02235-JWB-GEB, 2019 U.S. Dist. LEXIS 151466 (D. KS. Sept. 4, 2019).
5 Frey v. Minter, No. 4:18-cv-191 2019, U.S. Dist. LEXIS 180017 (M.D. Ga. Oct. 17, 2019).
6 Mayhew v. Angmar Medical Holdings Inc., No. 18-2365-JWL-KGG, 2019 U.S. Dist. LEXIS 186347 (D. Kan. Oct. 2019)
7 Id. at *21-22.
8 Dewey v. Bechthold, No. 18-CV-1739-JPS, 2019 U.S. Dist. LEXIS 183378 (E.D. Wis. Oct. 23, 2019).
9 Id. at *3.
10 Id. at *4.
12 Lawson v. Love's Travel Stops & Country Stores Inc., No. 1:17-CV-1266, 2019 U.S. Dist. LEXIS 188853 (M.D. Pa. Oct. 31, 2019).
13 Id. at *18-19.
14 Urban 8 Fox Lake Corp. v. Nationwide Affordable Housing Fund 4 LLC, No. 18 C 6109, 2019 U.S. Dist. LEXIS 196474 (N.D. Ill. Nov. 13, 2019).
15 Id. at *10.
16 Id. at *11.
17 “The rule does not require a party to produce electronically stored information in the form it [sic] which it is ordinarily maintained, as long as it is produced in a reasonably usable form.” Fed.R.Civ.P. 34, 2005 Advisory Committee note.
18 See, e.g., Landry v. Swire Oilfield Servs. LLC, 323 F.R.D. 360 (D.N.M. 2018) (“It is only if the requesting party declines to specify a form that the producing party is offered a choice between producing in the form ‘in which it is ordinary[sic] maintained’—native format—or ‘in a reasonably useful form or forms’”).
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