Plaintiff’s counsel serves the defense with a set of requests for production of documents. The requests specify that electronically stored information (“ESI”) be produced in its native format with all metadata attached. Aware that metadata is difficult to redact consistently, defense counsel is justifiably concerned about waiver of attorney-client and other privileges. To avoid any such waiver, defense counsel wonders whether it can simply choose to produce the ESI in another format.

Federal Rule of Civil Procedure 34(b)

Federal Rule of Civil Procedure (“Rule”) 34(b) specifically sets forth a procedure for the contents of a request for documents, ESI and tangible things, as well as the timing and content of responses and objections. A recent opinion, Morgan Hill Concerned Parents Association v. California Department of Education, No. 2:11-cv-3471 KJM AC, 2017 WL 445722 (E.D. Cal. Feb. 2, 2017), underscores the importance of knowing and adhering to Rule 34(b), especially with regard to discovery of ESI.

The Morgan Hill plaintiffs served the defendant with a set of document requests that specified that ESI should be produced “in their native electronic format together with all metadata and other information associated with each document in its native electronic format.” The defendant responded to these document requests but did not object to the production of ESI in its native format or propose another form for the production of ESI. Instead, the defendant objected to each request on multiple other grounds. More than a year after its initial response, after an extensive meet-and-confer process, the defendant finally stated a specific objection to the production of ESI in its native format. Further, the defendant produced some ESI but did so in the standard image-database-plus-load-file format generally used for non-native production. After further unsuccessful meet-and-confer seeking native production, the plaintiffs filed a motion to compel production of ESI in its native format as it had specified, arguing that the defendant should have either produced the ESI in its native format or specifically objected to the format and stated an alternative. The defendant argued that its production was proper because it produced the ESI in a “reasonably usable” form and that it had made a timely objection to the plaintiffs’ chosen format.

Failure to Comply with Rule 34(b) Results in Duplicate Production

The court agreed with the plaintiffs, stating that Rule 34(b) allows the requesting party to specify the form or forms in which production should be made. The responding party is not bound by the requesting party’s election but may object to the requested format and specify an alternative “reasonably usable” format of its own. If the responding party does not object timely––for example, in its first set of written objections and responses––then the objection may be waived and the responding party must produce the ESI in the format requested.

The court rejected the defendant’s argument that the plaintiffs could not demand production in a specific format just because it would ease the burden of review. Indeed, ease of review is a reason why a requesting party may specify a particular format.

The court further found that producing ESI in load-file format—which the court conceded to be “reasonably usable” and a standard and widely accepted format—did not trump the defendant’s legal obligation to produce the ESI in the format specified by the plaintiffs or to make a timely objection.

The defendant also argued that it would be unduly burdensome to require it to produce all of the requested ESI in its native format because it had already produced thousands of the same documents in load-file format. The court rejected this argument stating that the problem was of the defendant’s own making: had it followed the Rules and produced the documents as requested or made a timely objection, it would not have found itself required to make a partially duplicate production.

Practice Tips

  • Parties should meet and confer as soon as practicable to reach agreement regarding the production of ESI: Meeting and conferring early in the process can prevent having to devote time and effort to litigating a motion to compel and having to incur the costs associated with reproducing ESI.
  • Objections to discovery must be timely: Objections to the format of production may be waived if not made at the first formal opportunity.
  • The producing party should make specific objections to production format: A party responding to a request to produce ESI should not simply refuse to produce the ESI in the requested format if it believes that the request is unreasonable or disproportionate or the information sought is irrelevant. Instead, it should object to the proposed form, propose an alterative form, and seek a protective order if an agreement cannot be reached.
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