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Failure to Seek Native Format and Metadata at Outset Sinks Plaintiff Request

Posted on July 17th, 2015

In U.S. ex rel Carter v. Bridgepoint Education, Inc., et. al., Case No. 10-01401, the Southern District of California considered, among other things, Plaintiffs’ request that Defendants produce emails in native format and produce metadata for all ESI, including for ESI already produced by Defendants.

Defendants, an education company that receives most of its revenues from the federal government’s financial aid program for students, employed Plaintiffs as student recruiters. During discovery, Plaintiffs requested that Defendants produce all relevant documents, including disaster-recovery backup tapes and emails. The request specified that Defendants must produce “each original document with all non-identical copies and drafts of that document.” Plaintiffs asserted that this language in the request sufficed to require Defendants to produce the backup tapes and active emails in native format (which would necessarily include production of metadata). Defendants refused.

The court disagreed with Plaintiffs that the language of the document request had implicitly included a request for native format, observing that the term “original document” was not “sufficiently precise” to require Defendants to voluntarily produce in native format; rather the court found the language in the request failed to specify any format and concluded that in such a situation, Defendants could reasonably produce in TIFF format. The court also refused to order Defendants to produce metadata for ESI already produced, concluding both that Plaintiffs had failed to specifically request metadata fields in their initial document request and had failed to articulate any particular need for the metadata beyond that metadata “sometimes” can be essential for fully understanding a document.  The lesson learned here for the Plaintiffs’ bar? Best practice is to always seek required production format clearly and concisely in the initial document request.

ILS – Plaintiff eDiscovery Experts

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