eDiscovery Daily Blog

Court Denies Plaintiff’s Request for Native Re-Production by Defendant: eDiscovery Case Law

In Baker v. Santa Clara Univ., No. 17-cv-02213-EJD (VKD) (N.D. Cal. Jul. 31, 2018), California Magistrate Judge Virginia K. Demarchi denied, without prejudice, the plaintiff’s request for an order compelling production of electronically stored documents in native format, finding that the plaintiff “does not have a compelling reason for demanding that SCU (Santa Clara University) re-produce its entire responsive document production in native format simply because she might find something missing.”

Case Background

In this case involving claims of ongoing harassment, discrimination and retaliation by the plaintiff against her employer, the plaintiff served 54 requests for the production of documents in May 2018, with the 54th request to cover the format of production for all documents responsive to the other 53 requests, stating:

“With respect to each request, produce all documents in native format, including electronically stored information, metadata, and all metadata fields. Do not do anything that strips, removes, changes, limits, or otherwise alters the actual electronically stored information and metadata fields of any document that exists in an electronic format. Ensure that all such evidence remains intact, undisturbed, and is produced with each and every electronic document.”

The defendant produced over 2,500 pages of documents in response to the plaintiff’s document requests, but objected to Request No. 54 and produced all documents in .pdf format without metadata. The defendant did not specifically contend that the documents it produced are maintained in .pdf format in the usual course of its business.  As a result, the plaintiff asked for an order requiring the defendant to produce all responsive, electronically stored information in native format.  In requesting the re-production in native format, the plaintiff stated that native format “is very useful in identifying missing `parent emails'[,] `child emails'[,] hidden attachments[,] altered electronic records[,] and other electronic activity having the usefulness of establishing the existence of electronic records that have not been produced.”  In response, the defendant stated, without contradiction, that it attempted to engage the plaintiff’s counsel in a discussion of the search and production of electronically stored information more than a year ago in connection with the parties’ obligations under Rule 26(f), and that the plaintiff’s counsel did not meaningfully engage in the required discussion.

Judge’s Ruling

Judge Demarchi observed that “Neither party has complied with the rules and guidelines that govern the production of electronically stored information”.  Noting that “Rule 34(b)(2) requires a party responding to document requests to object to a requested form of production for electronically stored information, and to state the form or forms of production it intends to use,” Judge Demarchi determined that “while SCU objected to the form of production demanded by Ms. Baker in response to Request No. 54, it did not specify the form of production it intended to use, and it apparently did not organize and label its production to correspond to the categories in Ms. Baker’s requests.”

As for the plaintiff, Judge Demarchi determined that the plaintiff “appears to have utterly failed to comply with the requirements of Rule 26(f) and this Court’s Guidelines for the Discovery of Electronically Stored Information by refusing to meaningfully engage in any discussions early in the case about the search and production of documents stored in electronic format.”

Stating that “The parties now find themselves in a dispute two weeks before the close of fact discovery that might have been avoided had they both complied with their respective and mutual discovery obligations”, Judge Demarchi, while acknowledging that the defendant “has not made any showing that re-producing some or all of its production in native format would be unduly burdensome” stated:

“Ms. Baker’s primary argument for demanding production of documents in native format is that such production might reveal that SCU has not produced all of the documents it should have. SCU’s document production is not particularly voluminous, and Ms. Baker has had nearly a month to review it. Absent a specific, articulable basis for believing SCU has not complied with its discovery obligations, Ms. Baker does not have a compelling reason for demanding that SCU re-produce its entire responsive document production in native format simply because she might find something missing.”

As a result, Judge Demarchi denied the plaintiff’s request without prejudice, stating “If Ms. Baker identifies particular documents or specific categories of documents for which she requires metadata or production in native format, she should make a request for re-production of those documents to SCU, together with an explanation of why re-production is necessary, as SCU has invited her to do already. If the parties cannot agree on whether or to what extent re-production may be necessary or justified, they may bring their dispute before the Court pursuant to the Court’s Standing Order for Civil Cases.”

So, what do you think?  Should the plaintiff’s failure to comply with Rule 26(f) have let the defendant off the hook for failing to comply with Rule 34(b)(2)?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

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