eDiscovery Daily Blog
Court Rejects Plaintiffs’ “Mindlessly Deficient” Objections to Native Format Production: eDiscovery Case Law
In McDonnel Grp., LLC v. Starr Surplus Lines Ins. Co. et al., No. 18-1380 (E.D. La. Oct. 3, 2018), Louisiana Magistrate Judge Joseph C. Wilkinson, Jr. granted in part and denied in part the defendants’ motion to compel, granting the defendants’ requests for the plaintiffs to produce construction schedules in native format, to identify responsive materials already produced to other specified defendants’ requests and to provide a privilege log for any documents withheld based on privilege to those requests. Judge Wilkinson denied the defendants’ request for attorney’s fees and other expenses incurred in connection with the defendants’ motion.
In this dispute between a general construction contractor and its insurers, the defendants sought production of construction schedules in native format, but the plaintiff asserted that it had produced all responsive materials in PDF format, even though the defendants specified production of “all construction schedules for the Project in their native format (as native files)”, according to Fed. R. Civ. P. 34(b)(1)(C), which provides that a requesting party “may specify the form or forms in which electronically stored information (“ESI”) is to be produced.” As the responding party, plaintiff was required to “state with specificity the grounds for objecting to the request, including the reasons.”
As Judge Wilkinson noted (while erroneously referring to the plaintiff as defendants a couple of times): “In their written response to Request No. 34, defendants(sic) complied with none of these requirements. Instead of asserting specific objections or stating that it intended to produce these clearly relevant and discoverable materials in some form other than the requested native format, defendants asserted a mindlessly deficient, boilerplate, stonewalling objection that the request was ‘vague, overly broad, and not reasonably calculated to lead to the discovery of admissible evidence.’…By failing to object to production in native format, defendants(sic) waived that objection… Such information in the construction schedule context, with its frequent alterations, change orders, and time sensitive but often disturbed deadlines, is relevant. The PDF files chosen by plaintiff for production are merely pictures of the materials that do not provide metadata.”
Continuing, he wrote: “Plaintiff offers no proof that production of the requested construction schedules in native format would be unduly burdensome or expensive or that native files are not the way it ordinarily maintains the construction schedules. Instead, it relies upon Rule 34(b)(2)(E)(iii), which provides that “[a] party need not produce the same electronically stored information in more than one form.” Plaintiff dispossessed itself of this protection when it failed to object to production of its native files in its written response or state in its written response that it would produce all requested materials in PDF form, as required in Rule 34(b)(2)(D). To permit a responding party, in the face of a request that ESI be produced in a particular form, arbitrarily to choose some other form, would disrupt and undermine the orderly request/response/objection/confer structure and requirements of the remainder of the Rule concerning ESI. For these reasons, the motion is granted as to Request No. 34. Plaintiff must produce all native files sought in this request, together with a new written response, signed pursuant to Fed. R. Civ. P. 26(g), clearly stating that it has done so.”
Judge Wilkinson also classified the plaintiff’s written responses to other requests as “deficient” and ordered the plaintiff to “provide new written responses to these requests, clearly stating that it has produced all non-privileged responsive materials in its possession, custody or control, signed pursuant to Fed. R. Civ. P. 26(g), and identify those responsive materials by Bates number or other specific identifier. If plaintiff is withholding any materials responsive to these requests on privilege or work product grounds, it must provide the log required by Fed. R. Civ. P. 26(b)(5).” However, Judge Wilkinson denied the defendants’ request for attorney fees and other expenses incurred in connection with the defendants’ motion.
So, what do you think? Should failure to provide specific objections to form of production requests automatically waive those objections? 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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