Not Just the Book, but Its Cover
Typically, the first question that comes up when your client receives a request for production is “what is the scope of the responsive documents to produce, in order to comply with the discovery request?” However, at least in one California court, not only does it matter what you provide in response to a discovery request but in what format you produce ESI.
In Morgan Hill Concerned Parents Assoc. v. California Dept. Educ., (E.D. Cal. Feb. 2, 2017), the California federal district court granted the Plaintiffs’ motion to compel production of documents in the native format with metadata, even though the Defendants had previously produced the material in an “industry standard load format.
In the original requests for production, the Plaintiffs had specified that ESI be produced “in their native electronic format together with all metadata and other information associated with each document in its native electronic format.” However, when Defendants produced responsive documents, they choose to produce ESI in a “load file” format with accompanying metadata.
Plaintiffs then sought the reproduction of those same documents in the native file format, as requested in the original requests for production. The Defendants objected, on the grounds that they had produced the ESI in a “reasonably usable” format and they should not have to reproduce “just because one [production format] would allegedly ease a party’s review process.” In addition, the Defendants argued that “producing documents in their native format would infringe on the deliberative process, attorney-client, and attorney work product privileges.”
The Court ruled in favor of the Plaintiffs, relying substantially on Fed.R.Civ.P.34(b) and the Defendants’ failure to timely object to the request for native production or to propose an alternative format. The Court reasoned that it is within the purview of the requesting party to specify a production format for ESI, and the Court noted that the Defendants did not many any objections to the particular format for production, even though they made numerous objections in their original response to the requests for production. Moreover, the Court held that attorney-client privilege would not be waived with a proper privilege log.
In this matter, the Defendants had to reproduce all ESI in native format, with proper and timely privilege logs for any withheld documents.
So, at the end of the day, it is important not just to determine the scope of responsive documents, but to identify (and object to, in a timely manner) the requested production specifications. Consider the cover, as well as the book. And, if you have any questions about the production specifications or format, please do not hesitate to ask your ediscovery vendor.