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Court Declines to Require Defendant to Reorganize ESI Production When No Prejudice Shown

Posted on March 10th, 2017

Reorganize ESI ProductionIn Excel Enterprises, LLC v. Winony PVD Coatings, LLC, Case No. 16-19 (N.D. Ind., Feb. 17, 2017), a breach of contract case, a discovery dispute arose surrounding Defendant’s production to Plaintiff. A Motion to Compel was filed, and after Defendant produced 30,000 documents, Plaintiff informed Defendant that the documents were not searchable and identified its preferred, searchable format. Defendant produced the documents again in the requested format, but on that same day, Plaintiff filed a second Motion to Compel, alleging that Defendant did not produce its documents as kept in the ordinary course of business as required by FRCP 34 and did not categorize and label the documents to show to which requests they were responsive.

The court ordered Defendant to supplement its production and identify by Bates number which documents responded to which requests. Defendant filed a Motion for Reconsideration, attaching an affidavit from its Director of IT, Mark Hohulin, detailing the eDiscovery procedures Defendant used and testifying that the information provided to Plaintiff was not modified and was produced as ordinarily kept. Defendant also argued that its documents contained “key identifying information” including custodial field, file type, file name, To:, From:, date sent and date received. Further, Defendant argued that Plaintiff was not prejudiced.

Plaintiff objected, arguing that the affidavit did not explain how the metadata was stripped from the documents in their conversion to unsearchable TIFF and PDF files before the initial production, and that the affidavit did not establish that Defendant kept its emails and other ESI in tiff and PDF format with no associated metadata in its ordinary course of business.

The court questioned why the affidavit was not provided in response to the second Motion to Compel in the first place, nor did it explain why it did not make its arguments in response to that Motion. The court also found, however, that Defendant’s lack of prejudice argument was persuasive, as Plaintiff had not shown how the current state of the production was harming it in any way and whether requiring Defendant to reorganize the files was proportional to the needs of the case and whether it was unduly burdensome. The court granted the Motion for Reconsideration and found that the production was complete.

ILS – Plaintiff ESI Discovery Experts

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