There is no shortage of case law on motions to compel native files, metadata and all things dealing with the form of production. However, there is one basic requirement for a motion to compel: You have to have a request for production first.
Most motion to compel train wrecks happen because attorneys do not set a form of production during the meet & confer process, lack of cooperation and failing to state a form of production in the actual request.
D’Onofrio v. SFX Sports Group, Inc., 2008 WL 189842, 4 (D.D.C) is a little different. In D’Onofrio, the moving party brought a motion to compel discovery in native file format with metadata. The problem: there was no original request for the ESI in native file with metadata. Basic civil procedure states that a motion to compel is appropriate only where an appropriate request is made of the responding party.[1]
The Court held that because no such request was made concerning the electronically stored information at issue, the Court did not compel the responding party to produce it in its original form with accompanying metadata.[2]
There is a fundamental truth to a motion to compel: there has to be a request for the information before bringing a motion to compel. Attorneys will serve their client’s interests by considering what electronically stored information they must request and stating the form of production instead of trying to correct such omissions in a motion to compel.
[1] D’Onofrio v. SFX Sports Group, Inc., 2008 WL 189842, 4 (D.D.C.), citing Fed.R.Civ.P. 37(a)(1)(B); Raghavan v.. Bayer USA, Inc., No. 3:05-cv-682, 2007 WL 2099637, at *4 (D.Conn. July 17, 2007)
[2] D’Onofrio v. SFX Sports Group, Inc., 4