June 30, 2017 Practice Points

When Asked to Produce ESI in a Particular Format, Comply or Object, but Don’t Ignore the Request

A decision from the Eastern District of California reminds us that this clear mandate is not to be ignored.

By Andrew Felser

Unless the parties have already stipulated to a particular form of ESI production, a requesting party “may specify the form or forms in which electronically stored information [ESI] is to be produced.” Fed. R. Civ. P. 34(b)(1)(C) and (E). A decision from the Eastern District of California reminds us that this clear mandate is not to be ignored. In Morgan Hill Concerned Parents Ass’n v. Cal. Dep’t of Educ., No. 2:11-cv-03471 (E.D. Cal. Feb. 1, 2017).

Plaintiff Morgan Hill served defendant CDE with a request for production. The request included the instruction that any ESI be produced “in [its] native electronic format together with all metadata and other information associated with each document in its native electronic format.” CDE responded to the overall document request without objecting explicitly to the form in which ESI was requested. CDE produced its ESI in “load file” format. Generally speaking, a “load file” is ESI imported into a litigation database. A load file is not ESI in native format and does not reveal metadata. The litigation was protracted, and Morgan Hill eventually filed a motion to compel CDE to comply with its ESI instruction.

CDE argued, among other things, that its form of production was adequate under “standard” practices. But the court found that none of the authorities cited by CDE, including the Sedona Conference, supported CDE’s position—a position contrary to the wording and purpose of the rule. Equally important, CDE had not lodged any objection to the ESI instruction for more than three years while the case was pending. The objection was therefore untimely. The court rejected CDE’s argument that it should not have to undertake the additional expense of producing native-format ESI after having incurred the expense of producing “29,000 documents.” That, the court said, was “a problem of CDE’s own making.” The Court ordered CDE to “produce all ESI in native format with all metadata attached. Any ESI that has already been produced in another format shall be reproduced in native format with all metadata attached, within 30 days.”

This case teaches us two good lessons. First, a requesting party should use its power to specify the form in which ESI must be produced. Experienced counsel will try to resolve the issue collaboratively before it arises by negotiating a stipulated ESI order. Given the reciprocal nature of the resulting burdens, those negotiations are often driven by how difficult either side wants life to be for itself. In the absence of a stipulation, employ the rule. If you don’t, the potentially less desirable default provision of Rule 34(b)(1)(E)(ii) will apply. The second lesson is that if your client is the responding party and has a valid objection, make the objection explicitly and make it timely, and at the same time don’t neglect to state the form in which your client will produce the ESI. Fed. R. Civ. P. 34(b)(1)(D).


Andrew Felser is with Felser, PC, in Denver, Colorado.


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