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Court Orders Defendant to Produce Native Files of Draft Affidavits

Posted on September 18th, 2015

In Johnson v. RLI Insurance Company, Case No. 14-00095 (D. Alaska, Aug. 31, 2015), Plaintiff was injured in a car accident in which the driver was killed. Plaintiff sued the driver’s estate and received an over $2 million judgment and the assignment of any claims the estate had against its insurance company. Plaintiff then sought a declaratory judgment that the insurance company had an obligation to defend and indemnify the estate, and sought damages for breach of contract and bad faith.

During discovery, Plaintiff requested that Defendant produce the entire insurance claims file, including any related ESI. Defendant produced a “heavily redacted” claims file and a privilege log. Plaintiff requested copies of other documents in the claims file in native format with metadata. Defendant objected, asserting that the documents it provided in paper or .pdf format were “reasonably usable” and that no further production should be required. Plaintiff filed a Motion to Compel production of the native format files.

The court first looked to FRCP 34(b)(2)(E)’s requirements that electronically stored information be produced “as they are kept in the usual course of business” and “in a form or forms in which [the information] is ordinarily maintained or in a reasonably usable form or forms.” Noting that the 9th Circuit has not provided significant guidance in this area, the court looked to other persuasive authority, including the Advisory Committee notes for Rule 34(b), the principles articulated by the Sedona Conference, and the Southern District of New York’s metadata discussion in Aguilar v. Immigration and Customs Enf’t Div. of U.S. Dep’t of Homeland Sec., 255 F.R.D. 350, 355-60 (S.D.N.Y. 2008).

Based on this authority, the court ordered Defendant to produce all drafts of a critical affidavit in native format, noting that the metadata of the Microsoft Word documents would reveal who made revisions to the affidavit and when (potentially dispositive information that would not be visible in a PDF or other static production format).  The court also noted that Plaintiff had a heightened need for the native format here where the affiant had died and Defendant sought to introduce his signed affidavit into evidence under Federal Rule of Evidence 807’s hearsay exception.

ILS – Plaintiff Electronic Discovery Experts

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