A producing party claimed that it was “impossible” to produce Gmail in Native File Format because, “Gmail account user and Google does not permit its users to copy e-mails and documents in native format.” As such, the Defendant produced the gmail emails by forwarding them to the Plaintiff. Sexton v. Lecavalier, 2014 U.S. Dist. LEXIS 50787, 5-8 (S.D.N.Y. Apr. 11, 2014).
The Plaintiff disagreed and countered the emails could be produced by either 1) downloading the messages to a program like Outlook or 2) Gmail e-mails that have been displayed [6] in their “original” format by clicking “show original” on the Gmail website and subsequently saved as PDF files. Sexton, at *6.
The Plaintiff’s declaration explained in detail methods for exporting email. Id.
The Court stated that even though producing “cloud” email might be difficult, that did not “absolve him of his obligation to produce documents in a reasonably useable format.” Sexton, at *6.
The Court proceeded to recount the value of metadata and production methods to prevent the degradation of valuable metadata. Sexton, at *7, citations omitted. The Court stated the following on the Defendant’s production obligations:
In the context of a request for native e-mails stored with a third-party provider, a functionally native format that preserves relevant metadata, such as those formats that can be generated through an e-mail client like Microsoft Outlook or through e-discovery collection software, should generally suffice.
Sexton, at *7-8.
Bow Tie Thoughts
Attorneys have to get used to the reality that collecting cloud email will require the use of either a computer forensic expert. There are multiple ways to collect cloud email, with one method being to download the email to Outlook, followed by the email then being defensibly collected. Other applications can collect directly from the cloud. Regardless of the method used, the custodian should not do the collection. Self-collection often results in self-selection. Self-selection can end with relevant email not being produced.