Agreement on Load Files Disregarded: Must the Defense Production be Redone?
When you have a Stipulated Order to produce electronically stored information in native file format with accompanying load files, parties should comply with the order or raise timely objections if problems arise. For an example of a case the defendant failed to do this, see EEOC v. SVT, LLC d/b/a Ultra Foods, Cause No. 2:13-CV-245-RLM-PRC (N.D. Ind. April 10, 2014).
The parties agreed on “Concordance Load File Specifications,” and the defense production would be as follows:
1. Documents be produced in near native .Tiff format, and
2. Spreadsheets and databases be produced in native format.
However, when Defendant tendered the production, the spreadsheets were in .Tiff format, which was not their native formatting. The documents were bulk scanned and produced in PDF and .Tiff formatting without the agreed-upon load files. The defense production was not in native format—Plaintiff averred that Defendant converted the data from its ordinary use into a less usable form.
What is a Load File and Why is it Important?
The Sedona Conference, cited in the case, offers an explanation of a load file, which “indicates where individual pages or files belong together as documents, to include attachments, and where each document begins and ends.” The court noted that without load files, there is no way to ensure transfer of “accurate and usable images and data.” Basically, a load file in eDiscovery software organizes and categorizes the text files, including the metadata, such as the Author, date created, dates modified, dates printed, etc.
Defendant produced the bulk .Tiff files with no load files, therefore Plaintiff would have to spend much time attempting to make sense of the production—without any assurance of accuracy from the metadata. Further, the PDF documents produced were neither native files nor the formatting the Defendant kept in the usual course of business.
In this case, should Defendant completely re-do the production? Defendant avers the electronic data in this type of formatting was not “reasonably accessible” under Rule 26(b)(2)(B), and that they only realized such after the initial agreement was made. What do you think? We will continue our discussion of this case in our next post.