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Must Nonparties Produce Unredacted Electronic Data in Native Format?

Posted on July 28th, 2014

A recent blog post discussed whether defendants are allowed to produce non-searchable PDFs rather than native file formatting.  Prior to that we even had the chance to look at whether parties can unilaterally redact information that they deemed irrelevant.  Now, we turn our attention to whether nonparties are explicitly required to produce unredacted electronic data in its native format. Pursuant to a motion to compel, the court took up this issue in Wellin v. Wellin, Nos. 2:13-cv-1831-DCN, 2:13-cv-3595-DCN (D. S.D. July 14, 2014).

The case centered on the “Wellin Family 2009 Irrevocable Trust,” with Defendants asserting counterclaims against two other co-defendants. On April 29, 2014 Defendants filed a motion to compel two nonparties, Campbell Lane Hart (“Hart”) and Kimerly Henry (“Henry”), to produce all electronically stored information and documents that were requested, in order to assist their counter-claims.

The nonparties objected, broadly labeling the requests as irrelevant, overly broad, and unduly burdensome. In amended responses, the nonparties produced a total of forty-one pages of documents.

The key issues with the documents produced by the nonparties included:

1. The documents produced were clearly redacted, with portions of sentences, email addresses, and entire paragraphs missing;

2. Responsive emails were printed out and photocopies were provided for certain portions; and

3. Hart physically transcribed some text message exchanges and Facebook posts onto loose-leaf paper.

Defendants contended that the court should require both nonparties to produce all responsive electronic data in its native format, as requested by the subpoenas.

The court found:

1. Nonparties never explained their redactions nor asserted privilege over any of the redacted information; absent any explanation, and in light of how unilateral redactions breed suspicions and deprive the reader of context, nonparties are required to reproduce all responsive documents in their complete form; and

2. Nonparties’ failure to serve written objections to the requests to produce all electronic data in its native format, including metadata, in a timely fashion, means that any such objection has been waived.

Accordingly, the court required the Nonparties to reproduce all responsive documents in their native format.

ILS – Plaintiff eDiscovery Experts

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