When a Party Requests Native Files….

A Defendant/Producing Party resisted production of email in native file after making general objections to the production format.  Linnebur v. United Tel. Ass’n, 2011 U.S. Dist. LEXIS 124473, 20-21 (D. Kan. Oct. 27, 2011).

The Producing Party claimed that producing the email messages printed as paper was “sufficient” for the requesting party to determine the date, time, author and recipient of the native files converted to paper.  Linnebur, at *20.  Moreover, the Defendant argued the production of email as native files was not “facially relevant and that plaintiff has not met its burden to establish relevance.” Id.

The Court recounted its ruling in a prior decision, highlighting that a requesting party can specify the form of production pursuant to Federal Rule of Civil Procedure Rule 34(b)(1)(C).  Linnebur, at *20, fn 39.

A party resisting a production in native format in an opposition to a motion to compel has the burden to show the “information is not reasonably accessible because of undue burden or cost.” Linnebur, at *21, fn 40, citing Federal Rule of Civil Procedure Rule 26(b)(2)(B).

The Court stated the Defendant had failed to show, or argue, that the email messages were not reasonably accessible because of undue burden or cost.  Linnebur, at *21. As such, the Defendant’s objections were overruled and the motion to compel the ESI in native file format was granted.  Id.

Bow Tie Thoughts

The form of production and undue burden are two topics many lawyers continue to struggle with in responding to discovery requests.

At a recent seminar I attended, one lawyer explained that if a producing party claimed ESI was not reasonably accessible, the burden then shifted to the requesting party to show good cause for the production of ESI.

The giant problem with that viewpoint is a producing party must demonstrate under Federal Rule of Civil Procedure Rule 26(b)(2)(B) why the ESI is not reasonably accessible because of undue burden or cost.  A lawyer simply proclaiming the collection or production of native files is “unduly burdensome” does not comply with Federal Rule of Civil Procedure Rule 26(b)(2)(B).

What does “undue burden” look like?  In the collection context, a party could show by affidavit or testimony from an IT or collection expert the different sources of ESI (desktop computers, SmartPhones, etc); the location of ESI; the methodology to collect the ESI; the processing of the data; and the costs associated with all of the above work to demonstrate undue burden.

Judge’s Facciola’s opinion United States ex rel. McBride v. Halliburton Co., 2011 U.S. Dist. LEXIS 6412, 1-2 (D.D.C. Jan. 24, 2011) illustrates the above very effectively, especially his description of the testimony outlining the collecting methodology: “In excruciating, but highly educational and useful, detail.”  That statement should set the framework for showing undue burden.

As for the form of production, a party may need to redact confidential information, such as Social Security Numbers or HIPPA information.  A producing party should explain these issues in an objection pursuant to Federal Rule of Civil Procedure Rule 34(b)(2)(D), which necessitates the reason to convert native files to a static image for redaction purposes.