eDiscovery Daily Blog

Court Orders Defendants to Produce All ESI in Native Format: eDiscovery Case Law

In Kamuda et al. v. Sterigenics U.S., LLC et al., No. 18 L 10475 (Ill. Cir. Jan. 6, 2020), Circuit Court Judge Christopher E. Lawler ruled that “[u]nder Illinois Supreme Court Rules 201(b)(4) and 214(b), the parties should produce all ESI in the respective native formats”, agreeing that Rule 214 entitles Plaintiffs to their requested ESI format and rejecting the defendants’ offered compromise to produce some of the ESI in native format, but not all.

Case Background

In this case, the parties disputed whether the parties should produce electronic discovery materials in the “native” formats requested by the plaintiffs or the “TIFF+” formats proposed by the defendants.  The plaintiffs argue the TIFF+ format would impose unreasonable costs and create unnecessary challenges to potential witnesses and deponents. In their reply brief, the plaintiffs also contended that as the party requesting discovery, Illinois Rule 214 entitled them to their preferred ESI format.  Rule 214(b) reads as follows:

“With regard to electronically stored information as defined in Rule 201(b)(4), 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.”

The defendants requested to produce ESI in the TIFF+ format, arguing that TIFF+ is not unreasonably expensive, represents the standard practice in electronic discovery matters, and best serves cybersecurity interests.  However, the defendants offered a compromise, proposing the parties would produce Microsoft Excel spreadsheets, PowerPoint presentations, and Word documents with tracked changes and comments in the respective native formats. All other materials, including emails, would be in the TIFF+ format.

In December 2019, the parties submitted written briefs in preparation for a case management conference. And, on December 18, the Court heard oral arguments. In support of Plaintiffs’ position, a retained consultant testified and provided a PowerPoint presentation. The defendants submitted a written response to the consultant’s presentation on December 27 and the plaintiffs submitted a written reply on January 3.

Judge’s Ruling

Judge Lawler stated: “Since December 18, the Court has considered the parties’ arguments and submitted materials. After careful review, the Court appreciates Defendants’ offer to compromise and resolve the ESI issue this early in the proceedings. Yet the parties disagree. And ‘[a]bsent agreement, ESI must be produced as ordinarily maintained or in a form reasonably usable to the requesting party.’ The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 SEDONA CONF. J. pp. 171-72, Comment 12.b.”

Going further, Judge Lawler stated: “In addition, the Court agrees that Rule 214 entitles Plaintiffs to their requested ESI format…Plaintiffs specifically request the native format, which the Court has no reason to doubt is reasonably usable. The parties must therefore produce all ESI, including emails, in the respective native format.”

While ruling for the plaintiffs, Judge Lawler did also state: “That said, the Court recognizes the parties’ concerns about cybersecurity, minimizing costs, and eliminating unnecessary delays. The Court is therefore willing to revisit this decision if reasonable needs arise. Parties may show such reasonable needs by affidavits from their vendors or consultants.”

Here’s a new post by Craig Ball regarding plaintiffs and production formats that he just posted yesterday – hat tip to him for making me aware of this case.  After all, he was the retained consultant!  ;o)

So, what do you think?  Should courts always grant native productions if the requesting parties timely request that format?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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