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Defendant Failure to Produce in Agreed Upon Format Leads to Dispute with Plaintiffs – eDiscovery Case Law


In EEOC v. SVT, LLC, 2:13-CV-245-RLM-PRC, 2014 U.S. Dist. (N.D. Ind. Apr. 10, 2014), discovery disputes arose when the plaintiffs and defendants agreed upon the file format the requested Electronically Stored Information (ESI) for discovery was to be produced in, but the defendants’ production was not in the file formats specified.

In this workplace discrimination case, the plaintiffs allege that the defendants had engaged in discriminatory hiring practices based on gender, specifically that the defendants refused to hire qualified applicants who were female, and that disproportionately more males than females were hired. The plaintiffs submitted a Request for Production that asked for documents from the defendants including “applications, screening assessments, interview guides, spreadsheets containing data about applicants and employees, and pay rate information.” Neither party disputed that this ESI constituted relevant discovery for the case.

The plaintiffs requested under the Request for Production that the ESI be furnished in specified formats. These formats included documents to be produced in “near native” TIFF format with load files, and spreadsheets and databases produced in native format. At this time, the defendants indicated compliance and agreed that the ESI would be produced in these formats.

The defendants began producing discovery responses by furnishing the plaintiffs with spreadsheets in non-native TIFF format, and with employment applications in single-page, non-unitized PDF that did not include load files. Along with these responses, the defendants claimed that that had produced all relevant data “pursuant to industry standards.” The defendants did not communicate to the plaintiffs, either during production or after serving the discovery responses, that they had any issues with the formats of production specified in the Request for Production. They simply did not follow the agreed format, with no explanation.

Upon review of the ESI, the plaintiffs filed a Motion to Compel Agreed-Upon Formats of [defendants’] Discovery Responses. The plaintiffs submitted a Declaration detailing the deficiencies of the file formats the defendants had submitted, including that the printed images (TIFF) of spreadsheets and database files were not reasonably usable “because they cannot be searched or manipulated for analysis,” and further that the PDFs produced by the defendants were in “a less usable format than the original data” because they had been “bulk-scanned,” resulting in single-page files that were not logically unitized, and had been stripped of metadata such as necessary document/page relationships.

The plaintiffs contended that the defendants could have produced the ESI in the requested formats, and that it would not have been unduly burdensome, using the Kronos and Financial Management Systems, Inc. (FMS) systems that the defendants regularly store and work with data on during the course of business. It was noted by the plaintiffs that both systems “are capable of providing users with data in many forms and come with built-in functionality to query, export, and report data from databases.”

Additionally, the plaintiffs noted that two of the defendants’ human resources representatives had testified during depositions with regard to their experiences working with Kronos, and had stated that they had the ability to generate reports in either PDF or Excel formats, and that FMS can export data to Excel. Both representatives stated that Kronos could be used to sort data, enter specific queries and generate customized reports on the information the plaintiffs sought, in these requested native formats.

However, the defendants objected, stating that their use of a third party hiring program in which Kronos stores the data from applicants online meant that they were limited to producing PDF documents without log files. The defendants stated that they were unable to access the “raw data” through the third party system, which is a cloud-based application. Further, it was noted that producing ESI in the formats requested by the plaintiffs would be unduly burdensome in a financial sense, as the plaintiffs had already spent substantial amounts to produce the discovery documents served thus far.

Magistrate Judge Paul R. Cherry noted that the defendants had not objected or sought a protective order based on their purported inability to comply with the plaintiffs’ requested ESI production format, and further that the data sought was not inaccessible, and therefore duplication costs could not be viewed as unduly burdensome. However, Judge Cherry was mindful of “the apparent inequality of resources available to the parties in this case, the excessive costs that can be incurred in producing ESI, and that such costs can become so burdensome as to pressure a party to settle in order to avoid those costs.”

Therefore, it was ordered that the parties meet and confer in person to work toward resolution of the file format issues revolving around discovery in this case. Further, since the plaintiffs had stated familiarity with the systems used by the defendants, and understood how the requested discovery could be obtained “easily,” Judge Cherry ordered that the plaintiffs provide written” communication from the [defendants’] internal forensic computer expert…setting forth the remaining specific deficiencies with [plaintiffs’]…ESI production and proposing a specific and detailed explanation for obtaining and delivering the information in a cost-efficient manner for [plaintiffs].”

So, what do you think? Given the agreement, should the judge have granted the motion to compel? Please share any comments you might have or if you’d like to know more about a particular topic.

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