Form of Production: (Almost) Anyway You Want It

A Plaintiff in an age discrimination case requested ESI be produced in native format.  Linnebur v. United Tel. Ass’n, 2011 U.S. Dist. LEXIS 88456 (D. Kan. Aug. 10, 2011).

The Defendants did not assert any objections, but produced the responsive ESI as PDF’s.  Linnebur, at 3.

The ESI at issue included company organization charts, email, payroll and work performance evaluations.  Linnebur, at 4.

As the Court noted, Federal Rule of Civil Procedure Rule 34 allows a requesting party to state the form of production in their request.  Linnebur, at *5, citing Fed. R. Civ. P. 34(b).

If the ESI is not reasonably accessible because of undue burden or cost, the producing party demonstrate any undue burden.  Linnebur, at *5-6, citing Fed. R. Civ. P. 26(b)(2)(B).

The Defendants argued the PDF production was sufficient.  Moreover, they argued it was the Plaintiff’s burden to show why they needed the native files. Linnebur, at *6.

As a preliminary matter, the Plaintiff argued that the timing of her being fired was a key issue in her lawsuit.  Linnebur, at *6-7.  The metadata in the discovery was vital to showing when ESI was created, who created it and the file’s history.  Id. This information was not in the PDF production. Id.

The Court took the Defendant to task on their position it was the Plaintiff’s burden to show why native files were needed:

Moreover, the plain language of Rule 26(b) imposes the burden on “the party from whom discovery is sought” to “show the information is not reasonably accessible because of undue burden or cost.” Defendant makes no such showing. Accordingly, Plaintiff’s motion to compel is granted with respect to the requested ESI.

Linnebur, at *7.

Bow Tie Law

There are Federal litigants across the United States that take the point of view they do not need to produce requested native files.  The plain language of the Federal Rules of Civil Procedure are squarely against this false proposition.

If a party requests ESI be produced in native file format, it is the producing party’s duty to object and demonstrate why such a production is unduly burdensome.  The producing party might argue the costs involved or whether the ESI needs to be converted to a static image for redactions. However, producing in native file format has a lower processing costs then converting to a non-searchable image.