December 28, 2017 Practice Points

Production of Hard Copy Documents Found Sufficient to Avoid Production in Native Format

The District of New Mexico did not require “double production,” but did restrict discovery of a decision makers’ personnel files.

By Robert J. Will

Applying the proportionality principles embedded throughout the 2015 amendments to the Federal Rules of Civil Procedure, the court in this employment/wrongful-termination case held that a defendant need not produce electronically stored information (ESI) in its “native format” (that is, electronically) in addition to the hard copy format where the hard copy format was already provided. Ortega v. Mgmt. & Training Corp., 2017 U.S. Dist. LEXIS 3861 (D.N.M. Jan. 6, 2017). In so holding, the court noted that Rule 34 does not require a producing party to produce ESI in the form in which it is ordinarily maintained, but instead (citing to the 2006 advisory committee note) only in a “reasonably usable form.” While the court encouraged the defendant to produce the information in electronic format if it was not significantly expensive to do so, it did not require the “double production” requested by the plaintiff.

The court granted in part the plaintiff’s request for production of the personnel files of the persons who had authority over the plaintiff’s discharge, but only to the extent such files contain information regarding the reasons for the plaintiff’s termination or past complaints of racial harassment or discrimination, and subject to a confidentiality order to be agreed to by the parties or ordered by the court absent agreement. In so doing, the court required the defendant to respond to the document request by indicating whether such relevant information was included in the personnel files sought or to certify under Rule 11 that no such documents exist. Lastly, the court indicated that the plaintiff would bear the burden of showing good cause in seeking additional documents on these points.

The lesson learned from this case is that the concept of proportionality often requires a balancing of competing interests and in many cases results in “common sense” compromises that counsel in good faith should be able to arrive at without court intervention. With respect to discovery, the proportionality requires a showing of the degree to which information sought is relevant to specific claims, and will almost always reject expansive requests for documents (i.e., a “fishing expedition”) that likely would have marginal relevance to the case at hand.


Robert J. Will is a member of Lewis Rice LLC in St. Louis, Missouri.

Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).