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Defendant’s Failure to Timely Object to Native Format Production Results in Waiver Ruling

Posted on August 16th, 2017

object to esi formatIn Morgan Hill Concerned Parents Assoc., v. California Dept. of Educ., No. 2:11-cv-3471 KJM AC., (E.D. Cal. Feb 1, 2017), the Court granted Plaintiffs’ motion to compel native format production because Defendant, rather than timely filing objection to the requested format, instead proceeded to make production in a different format.

Plaintiffs, two associations of parents of children with disabilities, claim that the Defendant violated the Individuals with Disabilities Education Improvement Act by failing to provide free appropriate public education (“FAPE”) to the children with disabilities.

Plaintiffs moved to compel Defendant to produce emails in native format with all associated metadata. Defendant moved for a protective order against the production of electronically stored information (“ESI”) in native format, arguing that the documents had already been produced in the industry standard load format, and that production in the native format would be more burdensome than probative.

In April of 2013, Plaintiffs served the first requests for production of documents to Defendants. The request specified ESI should be delivered in native electronic format together with all metadata and other information associated with each document. In May of 2013, Defendant did not object to the instruction that ESI be produced in native format with all associated metadata, and it did not propose any other format for producing the ESI. Defendant did object to the discovery requests, calling them overly burdensome. In August of 2016, Defendants wrote to Plaintiffs, and for the first time, specifically objected to producing ESI in native format.

Under FRCP 34, Plaintiffs are entitled to specify the format in which ESI is to be produced. In their requests, Plaintiffs specified that ESI should be produced in native format with metadata. If Defendant had objections to that format, it was obligated to state its objections and to propose an alternate format. Defendant failed to timely object to the requested ESI format and did not propose an alternative, and accordingly it waived any objections to format. In the absence of any timely objection to format, the objections were waived, and the requested ESI must be produced in the form requested.

The court further rejected the argument that the native format was burdensome, finding that his issue was a problem of Defendant’s own making. Had Defendant complied with the Rules governing ESI discovery, the production would have been made only once. Either it would have been done after an appropriate meet and confer process, upon mutual agreement, or it would have been settled pursuant to a hearing upon briefing by the parties.  Since Defendant chose to ignore the Rules, and chose to ignore plaintiff’s request that ESI be produced in native format, the court will not now hear its complaint that it should not be made to reproduce the ESI in the requested format.

The Court ordered that within 30 days, Defendant shall produce all ESI in native format with all associated metadata.

ILS–Plaintiff ESI Discovery Experts

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