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Defendant Must Provide Compelling Reason to Sustain Native Format Objection in eDiscovery

Posted on December 11th, 2013

In Saliga v. Chemtura Corporation, No. 3:12cv832 (RNC) (Dist. Court, D. Connecticut Nov. 25, 2013), plaintiff Saliga brought suit against defendant Chemtura, alleging racial, gender and religious discrimination by her former employer. Every effort by the parties to agree on an electronic document production structure in Rule 26(f) conferences failed, so the court now recognizes further meetings would be fruitless. A Rule 26(f) conference requires litigants discuss and attempt to structure an eDiscovery plan, with the goal of reducing costs, shortening timelines and encouraging cooperation. Without a Rule 26(f) discovery plan, the court must determine electronic document production for the parties. Plaintiff Saliga filed a motion to compel production of electronic documents in native format, to use specific search terms and to receive detailed data extraction technical information, which the court granted in part and denied in part.

Native Format Requests are Allowable Barring a Compelling Objection

To determine production format, the court relied on Fed. R. Civ. P. 34(b)(1)(c), noting the requesting party can specify the format for electronic document production. Defendant Chemtura objected to the native format request, arguing standard practice is to use .pdf or .tiff formats. While .pdf and .tiff formats are common, the court supported plaintiff Saliga’s native format request as compatible with Rule 34(b)(1)(c) and granted this part of the plaintiff motion to compel. Courts readily grant plaintiff requests for native format electronic documents unless there is a compelling defense objection. Without an unduly burdensome, prejudicially harmful or actual hardship objection by defendants, native format production is fine.

The other two aspects of the motion to compel were frustrating to the court but easily settled. While courts want parties to settle on search terms, the enmity between these parties made agreeing impossible. Other than declaring name variants extraneous, the court used the search terms given by the plaintiff. However, the court found no reason for defendant to provide detailed data collection information to the plaintiff without specific allegations. Most importantly, the court insisted discovery proceed with all haste, balking at any further interruptions.

ILS – Plaintiff Electronic Discovery Experts

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