Producing Party Must Pay For Native File Production After Failure To Meet and Confer
In Themis Bar Review, LLC v. Kaplan, Inc., Case No. 14CV208-L, May 26, 2015, the Southern District of California ordered Plaintiff to produce files in native format at its own cost after Plaintiff failed to properly meet and confer with Defendant.
As part of its production to Defendant, Plaintiff, a distributor of bar exam study materials, had submitted a CD-ROM containing spreadsheets that revealed its students’ bar exam pass rates and scores by state, including information about how much of Plaintiff’s curriculum each student had completed. Plaintiff produced the spreadsheets, originally Microsoft Excel files, as PDFs. As a result, Defendant could not search, filter, or sort the spreadsheets as they could have done in Excel. Plaintiff also produced nearly a million pages of emails, some with attachments, but all in non-searchable format. When Defendant requested files in native format, Plaintiff ignored the requests. Defendant eventually filed a motion to compel. Plaintiff ultimately produced the spreadsheets in Excel, but refused to produce the emails because of the cost.
The Joint Discovery Plan provided that documents could be produced as PDFs; however, it also provided that, if a party determined that native format would be appropriate, the parties should meet and confer and come to a resolution about the production. The Court ordered that because Plaintiff did not cooperate with Defendant’s attempts to meet and confer regarding the production, Plaintiff must produce the emails in native format with associated metadata and extracted text and bear the cost of doing so.