Defendant Must Produce ESI In TIFF or Native Format, Even If It Requires Hiring an ESI Vendor To Do So
FRCP 34(b)(1)(C) allows the party requesting discovery to specify the format in which it wants the producing party to produce electronically stored information (ESI). If the party does not specify a particular format, FRCP 34(b)(2)(E) states that the producing party can produce the ESI in either i) the manner in which it is ordinarily maintained in the course of business, or ii) in a “reasonably useable” form.
In Nature’s One, Inc. v. Beefeater’s Holding Company, Inc. Case No. 2:15-cv-0007 (S.D. Ohio, March 31, 2015), the Southern District of Ohio considered Defendant’s argument that it could not produce ESI in the format Plaintiff requested because it would have to hire an independent eDiscovery vendor to do so.
Plaintiff had requested that Defendant produce its ESI in either TIFF image format or in native file formats to ensure that Plaintiff received the necessary metadata associated with the documents. Defendant argued that metadata had no bearing on the case, and that it could only produce in searchable PDFs without metadata because, to do otherwise, would require it to hire an independent electronic discovery vendor.
The court first observed that, per FRCP 34(b)(1)(C) and FRCP 34(b)(2)(E), Plaintiff as the requesting party, can request any formatting it wishes. The court also noted that if the other party objects to the requested format, that objecting party bears the burden of demonstrating why the requested format is not appropriate. The court noted that the burden is particularly high when the party objects to producing in native file format (which the court’s order implies is the preferred production format).
Defendants attempted to carry their burden by claiming that hiring an eDiscovery vendor would be an unduly burdensome cost. The court replied that the use of an eDiscovery vendor is “hardly a novelty,” and stated that “unless the cost of doing so is disproportionate to the potential benefit, the Court does not view that as a reason to alter either the manner of production specified in the document request or to deviate from a native format production.” Accordingly, the court ordered Defendant to produce ESI in the format requested, although the court did note that it would be willing to revisit its ruling as discovery progressed.