There are form of production cases that make me mutter, “Say what?”
This is one of those cases.
In the present case, the parties argued whether they needed to produce ESI as native files or PDFs. The Defendant claimed it would cost a total of $3,000 more to produce ESI as Native Files instead of PDFs. Mitchell v. Reliable Sec. (N.D.Ga. May 23, 2016, No. 1:15-cv-03814-AJB) 2016 U.S. Dist. LEXIS 76128, at *1. The Defendant explained it would cost $2,000 for the ESI processing and production, plus $1,000 for the paralegal to manage the production of native files and spreadsheets at $150 an hour. Id.
Judge Baverman stated during a teleconference that he was “at a loss to understand why the production of native documents is more costly than production of PDF files.” Mitchell, at *4-5. The Court held the producing party failed to demonstrate the production was cost prohibitive and stated the following:
Additionally, the Court finds that even had Defendant made a showing that it costs $3,000 more to produce the native files than to produce the PDF files, Plaintiff has shown good cause for the Court to order the production. While there has been no specific reason so far to believe that the emails and scheduling spreadsheets would have been modified since the time period at issue in the suit, it is not at all unreasonable for Plaintiff to wish to verify herself whether the emails or spreadsheets had been subsequently manipulated, modified, altered, or changed. Moreover, while it does appear that Plaintiff’s suit is unlikely to be of an especially high dollar value, the Court finds that the public value of allowing a civil-rights plaintiff opportunity to access information relevant and quite possibly necessary to her pregnancy-discrimination suit far outweighs the asserted $3,000 cost.
Mitchell, at *5.
Bow Tie Thoughts
The producing party’s argument made absolutely no sense. Producing native files as native files does not require the ESI to be translated into a different form. If anything, there are many service providers that charge MORE for converting native files to static images such as TIFFs or PDFs. There are hosted providers today that no longer charge anything for processing, whether it is for native file production or conversion to a static image. It is literally a box to check for the export.
Parties making undue burden arguments need to do more than say the cost of doing a production. Courts want details to make an informed decision, such as whether the data is exotic, whether it is on legacy computers, and anything else that could be relevant to deciding whether proportionality requires limiting discovery in some way. Claiming something is expensive is not enough.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.