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It Never Hurts to Ask: Case Law Update Regarding Requesting Native File Format

Posted on August 21st, 2015

ILS often espouses the benefits of receiving defense document productions in native file format. In complex litigations with increasingly large document productions, the metadata that comes with native file production can be a game changer for plaintiffs, both in terms of facilitating global analysis of a document production and by providing rich history of individual documents.

Given that the Federal Rules of Civil Procedure allow a party to request documents in any format, ILS recommends that plaintiffs’ attorneys request native format as early as possible in a litigation, ideally in a document preservation letter, an initial document request, or in a Rule 26(f) conference. As the below opinions illustrate, courts are unlikely to order native format productions to a party who requests it late in the litigation.

Native File Format Case Summaries

  • In Allison v. Clos-ette Too, LLC, No. 14 CV 1618 (LAK)(JCF) (S.D.N.Y., Jan. 9, 2015), Plaintiff served Defendant with its first document request but did not specify a preferred format. Defendant then produced responsive documents in non-native format without any objection from Plaintiff. When Defendant later requested that Plaintiff produce records in native format, Plaintiff moved to compel Defendant to re-produce its production in native format. Relying on FRCP 34, the court held that Defendant had no obligation to produce the documents again in native format given that Plaintiff had not originally requested native format and had not alleged that the documents as produced were “not reasonably useable.”
  • In S. ex rel Carter v. Bridgepoint Education, Inc., et. al., Case No. 10-01401 (S.D. Ca., February 20, 2015), the court concluded that Plaintiffs’ request that Defendants produce “original documents” did not constitute a “sufficiently precise” enough request to require Defendants to produce in native format. The court also declined to compel Defendants to produce the metadata for ESI already produced, holding that plaintiffs had not adequately articulated a reason for needing it.
  • In Nature’s One, Inc. v. Beefeater’s Holding Company, Inc. Case No. 2:15-cv-0007 (S.D. Ohio, March 31, 2015), Plaintiff’s initial document request specified that Defendant needed to produce ESI in either TIFF image format or in native format. Defendant refused, arguing that Plaintiff had no need for metadata and that the court should permit it to produce searchable PDFs so as to avoid the expense of hiring an independent eDiscovery company. The court disagreed and ordered the defendant to produce the files in native format, observing that FRCP 34 permits a party to request documents in any format, and that a party objecting to a particular format has the burden of showing inappropriateness (which the court noted is particularly high when objecting to native format). The court also rejected Defendant’s argument that hiring an eDiscovery vendor would present an undue burden, stating that eDiscovery vendors are “hardly a novelty.”

For more information about metadata and native format production and how ILS can help you win if the native file issue ends up before the judge, contact the plaintiff eDiscovery experts at ILS now.

 

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