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Plaintiff Not Required to Produce Metadata when Defendant Failed to Request It

Posted on February 1st, 2017

Produce MetadataIn Mr. Mudbug, Inc. v. Bloomin’ Brands, Inc., Case No. 15-5265 (E.D. La., Jan. 11, 2017), Plaintiff allegedly expanded its facilities to meet the requirements of Defendant’s contract, but then Defendant allegedly diverted business from Plaintiff and ultimately withdrew the entire contract. Defendant countersued for breach of contract. During litigation, Defendant served two sets of discovery requests, to which Planitff served responses. After switching to a new attorney, Defendant identified numerous deficiencies in Plaintiff’s responses, namely that Plaintiff failed to identify documents responsive to each request, and did not produce ESI in accordance with FRCP 34. Defendant attempted to resolve the issue by sending a letter and an email, but Plaintiff did not respond to either meet and confer attempt.  Defendant then filed a Motion to Compel.

Plaintiff argued that Defendant did not satisfy the meet and confer requirement, that the motion was untimely, and that it had addressed the ESI issue by providing Defendant with a thumb drive.

The court noted that ESI must be produced either in the way that it is ordinarily kept in the normal course of business, or in a “reasonably usable form.” FRCP 34 permits parties to choose the format for ESI production. The requests by Defendant, the court found, were “competing” in that one request asked for ESI in the format in which it was maintained in the ordinary course of business, while later in the same request, Defendant asked for PDF or Word format. In its motion, Defendant now sought native format for the ESI. The court found that Plaintiff did produce responsive documents in PDF format and that Plaintiff was not required to produce metadata, as Defendant did not request such in its inital discovery requests. The court held that Defendant is the “master of its production requests” and must be satisfied with what it has asked for.

The court granted the Motion to Compel as to Plaintiff’s responses lacking specificity.  It denied the remainder of Defendant’s motion re FRCP 34 ESI compliance issues.

ILS – Plaintiff Electronic Discovery Experts

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