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Is Failure to Produce Native File Format Sanctionable After Arbitration?

Posted on April 28th, 2014

In Sexton v. Lecavalier, No. 13 Civ. 8557 (AT)(S.D.N.Y. April 22, 2014), Plaintiff moves for contempt against a third-party witness, who responds by filing a Motion for Sanctions against Plaintiff and his attorney. The crux of the dispute? Whether, in arbitration, the third-party witness was required to provide email threads and communications in native file format.

No one disputed the power to subpoena third-party witnesses in connection to the arbitration. The subpoena specifically requested any electronically stored information (ESI) be tendered in native file format. Here’s the time-line of what happened next:

  • On November 5th, the third-party witness in the arbitration (who is now the Defendant in the above-styled case), responded and sent through his attorney 18 email threads that were not in native format.
  • On December 2nd, Plaintiff filed a Motion for Contempt for the failure to comply with the subpoena and produce the emails in native format with metadata.
  • On December 9th, the Court issued a Show Cause order to Defendant, to which the Defendant did not respond.
  • On December 10th, the Court issued an order directing him to produce the emails in native format.
  • On December 12th, Defendant’s attorney sent an affidavit from her law firm’s IT Department, claiming it was “not possible to electronically produce Google Gmail since we do not manage the infrastructure, but rather it is managed and controlled by Google.”
  • On December 13th, Defendant appeared before the Tribunal as a witness in the arbitration without the emails produced in native formatting.
  • On December 18th, the Tribunal issued an Order that no additional evidence would be accepted.

Plaintiff filed a motion before the court for a contempt order for failing to comply with the subpoena. Plaintiff offered two suggestions of how he could have fulfilled the request: (1) Download the emails from Gmail in Microsoft Outlook and saved on a disk in native format, or (2) Click “show original” on Gmail and save as PDF files. Defendant filed a Motion for Sanctions against Plaintiff for a Motion without a colorable basis under 28 USC § 1927.

The court denied both motions, claiming that Plaintiff was untimely, as discovery had already closed and Defendant responded to the subpoena in good faith. Defendant’s motion was also denied as there was a “colorable basis” for the sanction motion. Finally, the court chastised the parties: Plaintiff should have communicated the options for native files to Defendant before filing the motion, and Defendant could have easily submitted the 11 emails in some form of native format. “The parties should have resolved this matter before going to federal court.”

ILS – Plaintiff eDiscovery Experts

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