Sometimes, people don’t know any better and fight the really wrong fight. This might be where the maxim, “Never bring a knife to a gun fight” comes from. It is also the mindset that built the Maginot line. Perfect Barrier LLC v. Woodsmart Solutions Inc., 2008 U.S. Dist. LEXIS 71863 ( D. Ind. 2008 ) is a case study of the wrong fight.
In Perfect Barrier, the Defendant produced email messages on a disc in Native format. The plaintiff had not specified a form of production and Native file format was the form the ESI was normally maintained. The plaintiff claimed in their motion to compel they wanted the emails as TIFFs because a static format was “more convenient.” [1]
This is a backwards form of production dispute. In the reported case law I have seen, the dispute is to compel the ESI as Native file format, not as a Static Image such as a TIFF.
The Court stated Federal Rule of Civil Procedure Rule 34 only required the email produced in the format in which it was normally maintained, Native format, and nothing more. Moreover, “Convenience” is not a basis for requiring electronic discovery to be produced in a different format then normally maintained.
The moral of the story: If you want Native files as Static Images, then make a specific request for the form of production pursuant to Federal Rule of Civil Procedure Rule 34(b). Additionally, parties can agree to a form of production at the Rule 26 Meet & Confer. Conversely, if PSTs and Native files are produced, a litigation support vendor can “TIFF” the native files, giving you a load file with extracted text for your firm’s preferred litigation support software.