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Court Untangles Form of Production Dispute with Curling Iron Manufacturer: eDiscovery Case Law

In Wilson v. Conair Corp., 1:14-cv-00894-WBS-SAB (E.D. Cal. Apr. 30, 2015), California Magistrate Judge Stanley A. Boone granted in part the plaintiff’s motion to compel production, by requiring the defendant to produce further ESI in native format if feasible or TIFF format with the associated metadata, as well as to produce associated metadata for its prior production if it had not already done so.

Case Background

In this product liability class action, the parties disputed the production format of the electronically stored information (ESI) provided by the defendant, as the plaintiff requested the ESI to be produced in native format or, alternatively, in TIFF format with accompanying metadata, whereas the defendant produced the ESI in PDF format, including for Excel files where the defendant produced them as PDF’s in order to redact information. The plaintiff contended that “data produced in the TIFF format is more efficient, cost effective, and better suited for use inside a database application and it will require additional work to get the data produced in PDF format into a usable state”.

At least some of the ESI in the defendant’s possession existed in a proprietary, third-party “STARS” database which could not be accessed by the plaintiff, so the dispute over those proprietary files was primarily one of plaintiff requested TIFFs with metadata vs. the defendant produced PDFs. In the Joint Statement, the defendant indicated that they were willing to produce all future documents in TIFF format. As for the Excel files, the plaintiff sought for them to be produced in native file format, which the defendant ultimately agreed to do during the hearing.

The plaintiff also sought documents and information pertaining to 45 models of styling irons, whereas the defendant argued that discovery should be, at most, limited to the two models used by the primary plaintiff in the case.

Judge’s Ruling

Judge Boone quoted Fed. R. Civ. P. 34(b)(2)(E) which includes statements that “A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request”, “If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms” and “A party need not produce the same electronically stored information in more than one form”.

As Judge Boone noted, “The Rules do not require a party to produce ESI in the form most helpful to the opposing party…Defendant is unable to produce the STARS data in its native format as it would be unreadable to Plaintiff. Defendant is not required produce the same electronically stored information in more than one form, Fed. R. Civ. P. 34(b)(2)(E)(iii). Defendant has agreed to produce any additional discovery in TIFF format, and that shall be the order of the Court.”

As for the metadata, Judge Boone, while noting that the defendant had “agreed to produce all further files with the associated metadata”, ruled that agreement didn’t go far enough. “When the potential relevance of metadata is not questioned then it is discoverable”, he stated, ruling that “For those documents already produced that are the subject of this dispute, Defendant shall produce the associated metadata if they have not already done so.”

The defendant was also ordered to “supplement their responses to Request for Production No. 18 for all forty-five models where the complaint is a failure of the power cord”, but the plaintiff’s request to require the defendant to produce additional discovery on the forty-five models was “denied at this time”.

So, what do you think? Could this dispute have been avoided with an agreement up-front? Please share any comments you might have or if you’d like to know more about a particular topic.

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