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You Don’t Get a Second Chance to Make a First Document Production Request: eDiscovery Case Law

In Allison v. Clos-ette Too, LLC, No. 14 CV 1618 (LAK)(JCF) (S.D.N.Y. Jan. 9, 2015), New York Magistrate Judge James C. Francis, among other motions considered, denied the plaintiff’s motion to compel the defendants’ production of electronically stored information (ESI) in native format after the plaintiff had previously requested (and received) ESI from the defendants without specifying the desired document format.

Case Summary

In this employment dispute, the plaintiff originally requested ESI from the defendants in July 2014, without specifying a format. The defendants responded to the plaintiff’s demands later that month, and supplemented their response on various dates and the plaintiff did not object to the format of these productions. However, when the defendants requested that all ESI be produced in native format, the plaintiff was inspired to make a reciprocal request regarding the documents previously produced by the defendants. Following an oral discussion and request by plaintiff’s counsel that the defendants reproduce the earlier production in native format, the defendants declined to do so and the plaintiff filed the instant motion to compel.

Judge Francis dealt with the plaintiff’s request swiftly, as follows:

“Under Rule 34 of the Federal Rules of Civil Procedure, a party may specify the form in which electronically stored information is to be produced. Fed. R. Civ. P. 34(b)(1)(C). “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.” Fed. R. Civ. P. 34(b)(2)(E)(ii). The plaintiff did not originally object to the format of the defendants’ productions…She does not appear to contest that it is “reasonably usable,” nor does she even allege that native format documents would be more useful to her. As “[a] party need not produce the same electronically stored information in more than one form,” Fed. R. Civ. P. 34(b)(2)(E)(3), the plaintiff’s motion to compel is denied.”

So, what do you think? Should the plaintiff have been entitled to a second production? Please share any comments you might have or if you’d like to know more about a particular topic.

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