Opinion
Case No. 2:15-cv-0007
03-31-2015
Nature's One, Inc., Plaintiff, v. Beefeater's Holding Company, Inc., Defendant.
JUDGE MICHAEL H. WATSON
ORDER
The parties have submitted briefs to the Court on the issue of how electronically-stored documents are to be produced. Plaintiff has asked that they be produced as TIFFs, but it agrees, in its brief, that it will accept documents in native format instead. Either way, that production would give Plaintiff the metadata associated with the documents. Defendant claims that metadata will not be important in this case, and that unless it is permitted to use its chosen format (a different type of searchable PDF) it will have to retain a vendor to assist in its document production, and that will cost money (although it cannot, at the moment, say how much).
The starting point for any analysis of this issue is Fed.R.Civ.P. 34. Rule 34(b)(1)(C) allows the party requesting documents to specify the form in which ESI is to be produced. Rule 34(b)(2)(E) says that if there is no such specification from the party asking for documents, they must be produced "in a form or forms in which [the ESI] is ordinary maintained or in a reasonably usable form or forms...." As this Court has held, if a producing party objects to the manner specified in the request - particularly if the request is to produce ESI in native format - it bears the burden of showing why that manner is not appropriate. In re Porsche Cars North America, Inc. Plastic Coolant Tubes Products Liability Litigation, 279 F.R.D. 447, 449 (S.D. Ohio 2012). Other courts agree. See, e.g., Saliga v. Chemtura Corp., 2013 WL 6182227, *2 (D. Conn. Nov. 25, 2013)(noting that the showing of undue hardship imposed by this type of production must be "compelling...").
Here, Defendant claims that either a TIFF (which is the most common choice for ESI production) or native format production will be unduly burdensome because either requires it to hire a vendor. Hiring vendors to assist in electronic discovery is hardly a novelty, and unless the cost of doing so is disproportionate to the potential benefit, the Court does not view that as a reason to alter either the manner of production specified in the document request or to deviate from a native format production. The arguments about how much or how little benefit can be anticipated in this case from the production of metadata, which is usable not only for determining document properties but also for organizational purposes, simply cannot be resolved one way or the other on the basis of the current record. That state of equipoise means that Defendant has not carried its burden of sustaining its objection. As discovery progresses, of course, the parties may learn more about both the costs and benefits of how they produce their ESI, and the Court is willing to revisit this ruling if new information is available which might change the result. In the interim, however, Plaintiff is entitled to its choice of document format.
This order resolves the issue raised in Docs. 12 and 13.
/s/ Terence P. Kemp
United States Magistrate Judge