Court OKs Production Of PDFs, Sees Inadequate Need For Native Files
By IT-Lex Intern Rachel Paxton-Gillilan (LinkedIn)
Depending on the case, the format of eDiscovery production can be incredibly important. However, a recent case out of North Carolina reminds us of the importance of adequately explaining the need for a certain format to the judge. In Westdale v. Centro, the court denied the plaintiffs’ request for the native format and, instead, decided that PDFs were sufficient. The underlying lawsuit arises out of a real estate contract, and the plaintiffs are claiming fraud. The parties were able to agree on a discovery plan and a protective order, but were unable to agree on the type of electronically stored information (ESI) that would be produced.
Under FRCP 34, the requesting party “may specify the form or forms in which electronically stored information is to be produced.” But the rule allows the responding party to object to the requested form and state the form that it plans to use. According to the Advisory Committee Notes, if the parties disagree over the form of production, the parties must meet and confer before filing a motion to compel.
The plaintiff served 71 production requests on Centro, and almost all of the requests asked Centro to produce ESI in its native format. For each request, Centro gave the same generic response consisting of several objections and stating that it would produce relevant, non-privileged documents. Centro did not specifically object to the form of production in its responses. But, as part of its general objections, Centro objected to the plaintiff seeking the production in a particular electronic form or seeking ESI not reasonably accessible because of undue cost. Centro also stated it would produce ESI in paper printout form or in electronic format kept in the ordinary course of business.
Centro produced 500 pages of documents, which it later supplemented with an additional 120 pages of documents. Because of the form of production (and several other problems with the production), the plaintiffs filed a motion to compel. In response, Centro provided 24,000 pages of PDF documents. However, the two continued to dispute the proper form of production.
Plaintiffs wanted the ESI in its native format, which allowed it to search through metadata, arguing that the metadata is critical in a fraud case. However, the court agreed with Centro and concluded that PDFs were sufficient, noting that the plaintiffs did not “demonstrat[e] an adequate need to have all the ESI produced in native format.” The court recognized that the PDF would not contain the metadata, but noted that the metadata would not be destroyed. The court also left open the option for plaintiffs to file another motion in the future: “If after reviewing Centro’s production plaintiffs determine that they still seek production of particular EDI in native format, they may file an appropriate motion.”
But the court did conclude that Centro must do more supplemental searches and production. The court ordered Centro to produce all responsive documents based on additional search terms provided by the Plaintiffs. Unfortunately for the plaintiff, it looks like those documents will likely be PDFs.