It's a familiar dispute in cases involving eDiscovery.  One party asks the other side to turn over electronically stored information (ESI) in native file format, and the other party wants to turn over ESI in a different format.  By "native" file format, I am referring to the format in which the ESI was created and saved by the application producing it. 

What if the requesting party and the producing party can't agree on a form of production?  Who gets the last word on the issue?  Can a producing party refuse to turn over native ESI? 

Let's step a moment and ask why a dispute like this could arise.  By way of background, many people are aware of "metadata" that native files contain, some of which may be highly relevant to a case.  (If you aren't familiar with metadata, I suggest looking up information about it in eDiscovery references.)  Moreover, the requesting party will want to use software to process and/or search the ESI produced by the other side.  Of course, the requesting party can turn non-searchable ESI and even paper documents into searchable text using optical character recognition technology, although it can't recreate metadata from the original metadata if the producing party doesn't turn it over.  And OCR technology is not 100% reliable. 

The producing party may want to avoid turning over ESI in native file formats for a number of reasons, such as:

*     Ignorance or fear.

*     The producing party knows that the metadata contain unfavorable information.

*     The producing party cannot or does not want to spend the money to review the metadata, is afraid the requesting party will find something unfavorable in the metadata, and does not want to risk turning over native documents without reviewing the metadata first.

*     The producing party does not want to make the requesting party's job easier, and is resisting production of native files in order to raise the cost of eDiscovery for the requesting party and/or lower the amount of information the producing party turns over. 

Unfortunately, the rules are not crystal clear as to who gets the final word on form of production.  The Federal Rules of Civil Procedure say that the requesting party can specify that it wants the producing party to produce ESI in a certain form.  Fed. R. Civ. P. 34(b)(1)(C).  The rule is the same in the California state courts, under its Code of Civil Procedure ("CCP").  CCP 2031.030(a)(2).  In response to the request for ESI, the producing party is entitled to object to the requested form of production and must then state the form of production it is willing to make.  Fed. R. Civ. P. 34(b)(2)(D); CCP 2031.280(c).  In this way, the issue is joined, but these rules do not answer the question as to which party's preferences win out.  The parties have an obligation to "meet and confer" to negotiate their differences before seeking Court assistance in resolving the dispute, but what if the parties cannot resolve their disputes even after conferring? 

The Rules state that if the requesting party does not specify a form of production, the producing party must produce it in a form in which it is ordinarily maintained, which is typically native format so it can be used by the software that produced it, or else "reasonably usable" form or forms.  Fed. R. Civ. P. 34(b)(2)(E)(ii); CCP 2031.280(d)(1).  Nevertheless, we are talking about a situation in which the requesting party has, in fact, requested native file format.  Thus, this Rule does not directly apply.  In the absence of a clear answer, some producing parties that want to produce in non-searchable TIFF files argue that they have no obligation to produce native files.  There simply is no cut-and-tried answer under the rules. 

Apparently, the only remedy for a requesting party is to move to compel the production of native files.  But how should a court deal with such a motion? 

One court to deal with the issue is In re Netbank, Inc., 2009 U.S. Dist. LEXIS 69031, at *71-75 (N.D. Ga. Aug. 7, 2009).  In that case, one of the plaintiffs sought native files, and the defendants took the position that they had no obligation to produce files in native format, as long as they produce "reasonably usable" ESI.  The defendant identified a number of problems that might occur with production in native file format, such as the possibility of alteration of data, the lack of identifying "Bates" numbers, and the requesting party's lack of access to the software applications creating the files.  The court stated that these issues are merely "hypothetical" and concluded that the defendants have "given no good reason" why they should not produce native files.  Accordingly, the court granted the plaintiff's motion to compel. 

In California, Nova Measuring Instruments Ltd. v. Nanometrics, Inc., 417 F. Supp. 2d 1121, 1122 (N.D. Cal. 2006) used similar reasoning to order production of native files under patent discovery local rules.  The court ordered production of files, because the producing party provided "no reason why the documents should not be produced in their native format."  Id.  To similar effect are Ajaxo v. Bank of Am. Technology and Operations, Inc., 2008 U.S. Dist. LEXIS 97602 (Dec. 2, 2008) (granting sanctions because plaintiff produced non-searchable TIFFs, instead of searchable files); L.H. v. Schwarzenegger, 2008 U.S. Dist. LEXIS 86829 (E.D. Cal. May 14, 2008) (granting sanctions because defendants produced unsearchable pdfs instead of native files).  There are no similar cases in the California state courts under the California Electronic Discovery Act, perhaps because it is too new to have been interpreted in case law. 

Under these cases, the results is that despite the rules' lack of clarity, the wishes of the requesting party for native files will trump the producing party's refusal to provide native files in federal court.  The producing party will need to provide the judge a very good reason why production of native files is inappropriate if it wants to resist disclosure.  It remains to be seen whether the California courts follow this reasoning, although they are likely to want to follow the federal cases on this point. 

Stephen Wu

Partner, Cooke Kobrick & Wu LLP

(650) 917-8045