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Digital Photographs Produced In Native Format Comply with FRCP 34

Posted on January 26th, 2015

In Kough v. Wing Enterprises, Inc., et al., No. 3:12-CV-250-PLR-HBG (E.D. Tenn. Jan. 13, 2005), the United States District Court, Eastern District of Tennessee considered Defendants’ objections to Plaintiffs’ production of digital photographs.

Plaintiffs produced photographs in native digital format and in printed form but refused to provide Defendants with extracted metadata for the digital images, asserting that Defendants could extract the metadata themselves from the native production.  Defendants filed a Motion to Compel and Plaintiffs objected, arguing that producing the metadata would be duplicative and overly burdensome because Plaintiffs had already produced the photos in native file format.  The court first considered whether the production complied with FRCP 34, which requires that ESI must be produced in a format agreed to by the parties or in the manner in which the ESI is ordinarily maintained or in an otherwise reasonably usable format.  The court concluded that Plaintiffs’ native file production complied with FRCP 34 because Plaintiffs ordinarily maintained the photographs in native format.

The court further concluded that while Defendants were entitled to receive the metadata reflecting the dates the photographs were taken, Defendants needed to first try to extract the metadata themselves from the native file.  If they could not extract the metadata, the court ordered them to consult with someone familiar with metadata extraction.  If they were still unable to extract the metadata, Defendants could seek additional guidance from Plaintiffs, as per FRCP 34, which states that under certain circumstances, the producing party may need to provide a reasonable amount of technical support, information on application software, or other reasonable assistance.

ILS – Plaintiff Electronic Discovery Experts

Did you know? When a digital photograph is taken on a Smartphone, it can show the GPS coordinates of where the picture was taken.

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