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District Of Kansas Orders Production in Native Format

Posted on December 7th, 2015

The Plaintiff in Banks v. St. Francis Health Center, Inc., Case No. 15-2602 (D. Kansas, Nov. 23, 2015) filed suit against Defendant alleging race discrimination, harassment, and employment retaliation. During discovery, Plaintiff propounded requests for documents (including ESI) and interrogatories. Plaintiff filed a Motion to Compel as to certain aspects of the request and interrogatories, including:

1) Information withheld as privileged in Defendant’s privilege log regarding personnel files;

2) Three years’ worth of ESI in native format with metadata and attachments received, sent or created by four certain employees mentioning Plaintiff or any of 10 race or discrimination terms;

3) A copy of the employee handbook;

4) Communications (including ESI) between Defendant and healthcare management company Conifer about Plaintiff or any other African-American employees; and

5) Answers to interrogatories regarding Defendant’s search efforts.

The court found Defendant’s privilege log sufficient and denied the motion with regard to the documents set forth therein. The court also denied Plaintiff’s motion with regard to responses to interrogatories, holding that the “meet and confer” requirement was not met. However, the court granted Plaintiff’s motion with regard to production of the employee handbook as well as the request for production of ESI from the four employees.

With regard to the native file request, the court noted that FRCP 34(b) requires an objecting party to state why it will not produce native format and also to state the format in which it will produce. Because Defendant did neither, the court ordered that Defendant must produce the items in native format.

ILS – Plaintiff Electronic Discovery Experts

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