April 27, 2017 Practice Points

Think Twice: Requesting the Appropriate Format for ESI

Avoid buyer’s remorse.

By Eric B. Levasseur

In another cautionary tale concerning the discovery of electronically stored information (ESI), the U.S. District Court for the Eastern District of Louisiana recently reemphasized the importance of giving early and considered thought to the format in which a party would prefer to receive ESI from an opponent in discovery. Mr. Mudbug, Inc. v. Bloomin’ Brands, Inc., No. 2:15cv05265 (E.D. La. Jan. 11, 2017).

In Mudbug, the defendant served certain Rule 34 requests for production of ESI to the plaintiff. The requests contained competing, internal instructions as to the format of ESI requested: Certain requests specified that the ESI was to be produced “in the form in which it was maintained in the usual course of business or activity,” while other requests noted that “pursuant to Rule 34, all documents [were to] be produced in Adobe (PDF) and/or Word format.” In response to these requests, the plaintiff produced the responsive ESI in PDF format.

Approximately a year after serving the requests—and after new counsel substituted into the matter on behalf of defendant—the defendant’s new counsel argued that the plaintiff’s initial ESI production was deficient for numerous reasons, including that the ESI was not produced in native format and did not include metadata. The defendant moved to compel the production of the ESI in the new format.

Reviewing Rule 34(B)(2)(E), the district court disagreed, finding that the plaintiff’s first production satisfied its obligations under the Federal Rules of Civil Procedure. Rule 34(B)(2)(E) provides in pertinent part that “[i]f a request does not specify a form for producing [ESI], a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms,” and that “[a] party need not produce the same [ESI] in more than one form.”

The district court emphasized that the defendant was “‘the master of its production request[, and] it must be satisfied with what it asked for.” Accordingly, because the plaintiff produced its responsive ESI in a PDF form, as requested by the defendant (which request did not include a specific request for metadata), and the plaintiff provided a complete production, it was under no obligation to make a second production in native format and with all associated metadata simply because the defendant’s new counsel preferred this format. In short, having elected the format for its production in the first instance, the defendant could not be heard to complain later after it received what it asked for in the first place.

In limiting a request to one format for the production of ESI, Rule 34(B)(2)(E) serves to underscore and foster age-old, basic principles of federal discovery: avoiding undue burden and cost to the responding party, and ensuring that the discovery and its associated costs is proportional to the needs of the case.

The lesson of Mudbug: As a plaintiff in federal litigation—particularly in a case where ESI could play a pivotal role—avoid buyer’s remorse. Think long and hard—and early in the case—about the format in which you and your client want to receive ESI (and whether a request for metadata should be specified); whether the requested format will yield a workable and complete set of information; and whether the format is compatible with your and/or your client’s ESI review platforms.

Eric B. Levasseur is a partner with Hahn Loeser & Parks, LLP in Cleveland, Ohio.

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