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Plaintiff Ordered to Re-Produce Files in Native Format Because it Failed to Meet and Confer with Defendant: eDiscovery Case Law

You’d think a distributor of bar exam materials would know better…

In Themis Bar Review, LLC v. Kaplan, Inc., Case No. 14CV208-L, (S.D. Cal. May 26, 2015), California Magistrate Judge Barbara L. Major ordered the plaintiff pay for the cost to produce files in native format after the plaintiff originally produced unsearchable PDF images without metadata and failed to properly meet and confer with the defendant regarding production format as stipulated in the parties’ Joint Discovery Plan.

Case Background

On January 9, 2015, the plaintiff produced a CD-Rom containing spreadsheets reflecting the plaintiff’s pass rate statistics by jurisdiction and the records of its students’ bar exam results with the percentage of the plaintiff’s course work that each student had completed.  The spreadsheets were produced as PDF copies of the electronic files that had been Microsoft Excel spreadsheets – the produced PDF copies were stripped of their filtering, sorting, and searching capabilities.

On April 22, the plaintiff produced a hard drive containing 822,493 pages of email communications, again as imaged PDF files with no searchable text or metadata, despite the defendant’s repeated requests for the production to include extracted text.  The defendant had also previously offered to meet and confer to discuss the required production format.  The plaintiff ultimately responded by stating that the Joint Discovery Plan only required the production of PDF documents and that the parties had “never discussed producing the hard drive with extracted text, nor the . . . format of the hard drive production.”  The defendant responded that the Joint Discovery Plan sets forth a procedure for requesting the production of metadata that requires both sides to meet and confer regarding the request.

On May 7, the plaintiff produced the Mircosoft Excel spreadsheets in native format and explained “[p]reviously, you demanded that we provide the native files to you without explanation. For the first time, you explained in your motion to compel why Kaplan needed the files in native format.”  On May 12, the defendant offered to pay half of the cost – up to $8,200 – for the plaintiff “to produce the e-mails and attachments in the format we have specified in our motion”, but the plaintiff refused, stating they would only do so if the defendant paid the entire cost to re-produce.

Judge’s Ruling

With regard to the dispute regarding the Joint Discovery Plan, Judge Major excerpted the portion of the plan at issue, including this passage:

“If a party believes, on a case-by-case basis, that documents should be produced in a format other than native format, or that metadata should be produced, the parties collectively agree that they will meet and confer in good faith to discuss such alternative production arrangements.”

As a result, Judge Major ruled as follows:

“Based on the evidence provided by the parties and for the reasons set forth herein, the Court DENIES AS MOOT Defendant’s request that Plaintiff reproduce the spreadsheets in native format, GRANTS Defendant’s request for production of the emails with associated metadata in searchable format, and REQUIRES Plaintiff to pay for the cost of reproducing the emails with the associated metadata in searchable format. The Court finds that it is appropriate that Plaintiff pay for the reproduction because Plaintiff ignored Defendant’s request to produce the documents in the native format with metadata, failed to meet and confer with Defendant as required by the Joint Discovery Plan, and then produced the documents in the unsearchable PDF format without metadata.”

So, what do you think?  Should the plaintiff have been ordered to re-produce the documents at their own cost?  Please share any comments you might have or if you’d like to know more about a particular topic.

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