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Partial Non-Native Production with Load Files Insufficient, Defendant Ordered to Make All Native Production in Wrongful Termination Suit

Posted on June 21st, 2017

In Bailey v. Alpha Technologies Inc., et. al., Case No. 16-0727 (W.D. Wa., June 1, 2017), Plaintiff sued Defendants for wrongful termination, failure to pay overtime, willful withholding of wages, and defamation. Regarding e-discovery, the parties’ entered into a protocol agreement which outlined the acceptable ESI production formats. The agreement provided that ESI could be requested and produced in TIFF, PDF, native format and other formats. When Plaintiff served her discovery requests, she requested that defendants produce ESI in native format with metadata.  However, Defendants only produced Excel spreadsheets and PowerPoint presentations in native format and no other document types were produced in native form.

Although the parties held a discovery conference to address the issue, Defendants continued to refuse to produce emails, among other document types requested, in native format.  After an additional meet and confer session at which Defendants maintained their refusal to comply with Plaintiff’s request for native production, Plaintiff filed a Motion to Compel.

Upon ruling on Plaintiff’s motion, the court noted the difference between native format production and either TIFF or PDF format production. While observing that Defendants had produced some ESI in native format, the court pointed out that the balance of the production was produced as searchable PDFs and TIFFs “with accompanying load files containing extracted text and all metadata required by the ESI order.” The court further observed that Plaintiff sought native format production because it would provide important metadata. The court ruled in favor of Plaintiff on the issue of its request for ESI production, finding  production in native format complied with the Federal Rules as well as the ESI order. The court also found that Plaintiff’s request for production in native format with metadata was relevant and proportional to the needs of the case. Defendants were ordered to produce ESI in native format.

ILS – Plaintiff Electronic Discovery Experts

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