With some electronically stored information (ESI), what you see is what you get. A simple screenshot, PDF, or TIFF image may convey all the information that a litigant needs.
But that’s not the case with all ESI. When you’re requesting spreadsheets, database information, heavily edited documents, or—our specialty—website and social media evidence, native-format files are critical. Without them, you’re likely missing out on formulas, tracked changes, author and date information, and the dynamic, interactive content that most modern websites contain.
Not everyone has recognized this distinction yet; some attorneys still underestimate the importance of native-format production. That includes a number of judges and courts, who are just as human (and sometimes just as tech-averse) as the rest of the legal profession. That makes it all the more important that litigants follow the rules to the letter, correctly requesting native-format ESI when needed and explaining to the court exactly why it’s important.
The recent case of McDonnel Group, LLC v. Starr Surplus Lines Insurance Co. highlighted—as case law so often does—what not to do when producing responsive data for ediscovery. Fortunately, U.S. Magistrate Judge Joseph C. Wilkinson, Jr., clearly understands the difference between native-format files and quasi-paper PDF productions—and he provided some ammunition that other litigants can use to educate their own courts.
We’ll take a look at what happened in McDonnel, review the rule governing the form of production, and then provide some takeaway tips to help you request—and get—native-format production.
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The Facts of McDonnel Group, LLC v. Starr Surplus Lines Insurance Co.
This case arose out of a construction contractor’s work renovating the Jung Hotel, a 550,000 square foot, 17-story building in New Orleans. The contractor, the McDonnel Group, alleges that its insurer, Starr Surplus Lines Insurance Co., failed to pay several claims that arose during the project.
The court issued this specific opinion after Starr filed a motion to compel McDonnel to re-produce its construction schedules in native format rather than PDF. McDonnel Grp., LLC v. Starr Surplus Lines Ins. Co., No. 18-1380 (E.D. La. Oct. 3, 2018).
During discovery, Starr’s (aptly numbered) Request for Production number 34 asked McDonnel to produce its construction schedules in their native format.
McDonnel did produce those schedules, but not in native format; rather, it produced PDFs. In doing so, it didn’t object specifically to the form of production. Instead, it objected that Starr’s request was “vague, overly broad, and not reasonably calculated to lead to the discovery of admissible evidence.” (If you’re tracking along in the opinion itself and you’re confused, it’s not just you: the court mistakenly referred to the plaintiff as the defendants a few times. That’s why we’re sticking with the parties’ names instead!)
Starr, as noted above, moved to compel McDonnel to try again, re-producing its construction schedules in the originally requested native format. McDonnel argued that it had already complied with the request and wasn’t obligated to produce discoverable information in more than one form.
The court turned to Federal Rule of Civil Procedure 34 to review the parties’ rights and obligations concerning the form of production for responsive ESI.
Rule 34 and the Form of Production
What exactly does Rule 34 say about the form of production?
First, Rule 34(b)(1)(C) allows a requesting party to “specify the form or forms in which electronically stored information is to be produced.” Starr did that here when it asked for construction schedules in their native format.
As an aside, what if the requesting party doesn’t specify a form? Under subsection 34(b)(2)(D), the producing party must state the form or forms it intends to use, while subsection 34(b)(2)(E)(ii) allows the producing party to “produce [ESI] in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.”
Returning to the facts here, what if the requesting party does specify a form, but the producing party doesn’t want to comply? Rule 34(b)(2)(D) permits a producing party to “state an objection to a requested form for producing electronically stored information.” In that case, though, when “the responding party objects to a requested form … [it] must state the form or forms it intends to use.”
Here, McDonnel did object, sort of. But its “overly broad” objection was, itself, overly broad. The court correctly characterized it as “a mindlessly deficient, boilerplate, stonewalling objection.” (If that seems harsh, note that the court didn’t point out that it’s also an objection based on an outdated version of the relevance standard under Rule 26(b)(1).)
But McDonnel is right that under Rule 34(b)(2)(E)(iii), a producing “party need not produce the same electronically stored information in more than one form.”
From the rules, then, it looks like there’s an end-run available: if the producing party doesn’t like the requested format, it can state that it’s going to use a different form and then simply do so, cutting off the obligation to later produce that same ESI in a different form—namely, the originally requested form.
If you think that doesn’t sound quite right, you’re in good company: the judge didn’t think so, either.
Fortunately, the court had a justification for ordering re-production in native format. It held that McDonnel waived its objection to the requested form of production by not clearly and specifically objecting to it or stating what form it intended to use.
The court clearly grasped the import of what Starr sought in the native-format production. In this case, “the need for production in the requested, unobjected-to native format, with its associated metadata, is self-evident.” Construction schedules, the court postulated, were subject to “frequent alterations, change orders, and time sensitive but often disturbed deadlines.” This relevant information might reasonably be reflected in the metadata associated with native-format schedules. PDFs, which are “merely pictures of the materials that do not provide metadata,” would be a poor imitation of the native files.
The court continued, noting that McDonnel didn’t demonstrate any reason why native-format production “would be unduly burdensome or expensive.” Nor did it claim “that native files are not the way it ordinarily maintains the construction schedules.”
As to Rule 34(b)(2)(E)(iii)’s protection against a second production, the court held that McDonnel “dispossessed itself of this protection when it failed to object” to Starr’s requested form of production. The court then observed that “to permit a responding party, in the face of a request that ESI be produced in a particular form, arbitrarily to choose some other form, would disrupt and undermine the orderly … structure and requirements of the remainder of the Rule concerning ESI.”
The court granted Starr’s motion to compel re-production of the construction schedules in their native format.
Requesting Native-Format Production
When you’re requesting production of ESI in native format, bear these lessons in mind.
Try to negotiate native-format production. Instead of leaving it up to the court—which may or may not understand why you’re seeking native-format files—try to negotiate the form of production in your Rule 26(f) conference. That means you need to be prepared ahead of time to explain why native-format files are necessary and relevant. But really, would you go into any other negotiation without extensive preparation? Rule 26(f) conferences may be a preliminary step in the discovery process, but they’re critically important. Don’t treat them as a preamble to the “real” work of discovery.
Specifically ask for native-format files in your document requests. Yes, a producing party might choose to produce native-format files anyway, but why leave the choice up to your opponent? When native-format files are important, clearly spell out that you request production of ESI in its native format as originally created and maintained.
Explain to the court why native format is important. If you’ve tried to get native-format files but find yourself looking at a PDF or TIFF production instead, you may be forced to take the issue to the court, as Starr did here. Don’t count on the court understanding what you’re asking for or why: be prepared to educate it about the information you expect to find in native-format files and the information that is lost when native files are converted to “mere pictures” instead.
Native format is all the more important—and all the less well-understood—when it comes to online evidence from dynamic websites and social media platforms. Common methods like screenshots and PDF captures are inadequate reflections of these complex interactive conversations; they’re essentially like grabbing a single frame from a movie and trying to pass it off as the movie itself!
Make sure you’re requesting production of web evidence in its native format. But wait—what if you aren’t currently capturing your own website or social media evidence in native format? Never fear: Hanzo can help. We work exclusively on archiving complex, dynamic, interactive online content for professionals in ediscovery, regulatory compliance, and investigations. We’d love to show you what truly native-format web archives look like.