In Case You Missed It: Cenveo Court Provides Another Example of a Party Getting What it Asked For - Native Files12/28/2009 10:53
I am in frequent discussions with clients and colleagues about what is the best way to handle requests for native file productions. I always believe that understanding the FRCP requirements and the client's data is the first step towards a best practice for ESI discovery. The courts have been providing guidance to practitioners over the last couple of years and a recent ruling in the United States District Court for the District of Minnesota grants more insight into how to handle requests for native ESI. In Cenveo Corp. v. S. Graphic Sys., Civ. No. 08-5521 (JRT/AJB), (D. Minn. Nov. 18, 2009) (Order and Opinion on Defendants' Motion to Compel), Defendants requested productions in native format and Plaintiffs produced in .pdf format. Plaintiffs defended their pdf production by arguing that Defendants did not define "native format" and that because there was no definition, pdf was a "reasonably usable form" of production as set out in the Federal Rules of Civil Procedure.
Magistrate Judge Arthur J. Boylan disagreed and held that the term "native format" is unambiguous and the Plaintiff's production was not in compliance with Defendants' request or the FRCP. Judge Boylan cited numerous cases and secondary materials wherein "native format" is defined. Furthermore, the Court recognized that there are times when a requested form of production may be unduly burdensome and pointed out that the Plaintiffs never objected to the form of production as set out in the FRCP, and instead produced the documents in pdf format.
The Court noted and I reiterate here, FRCP 34(b)(2)(D) Advisory Committee Notes state:
...if the responding party objects to a form that the requesting party specifies. Stating the intended form before the production occurs may permit the parties to identify and seek to resolve disputes before the expense and work of the production occurs.
The lesson in this decision is to take control of the discovery and understand the ESI from the outset. FRCP 34 provides that a requesting party may specify the form of production, but the responding party must either specify the form of production or object to the form requested when specified. Under the Rules, a failure to object is the same as agreeing to the form specified. Its a simple premise, but one that is often overlooked.
For more guidance on the treatment of native file production by the courts, see Aguilar v. Immigration & Customs Enforcement Div. of U.S. Dep't of Homeland Sec., 255 F.R.D. 350 (S.D.N.Y. 2008).