Morgan Hill Concerned Parents Assoc. v. California Dept. Educ., No. 2:11-cv-3471 KJM AC, 2017 WL 445722 (E.D. Cal. Feb. 2, 2017)

In this case, the court granted Plaintiffs’ motion to compel production in native format with metadata, including the reproduction of information already produced, where Defendant failed to follow the protocol set forth in Fed. R. Civ. P. 34(b) and unilaterally produced in “’load file’ format.”

Plaintiffs’ first requests for production specified that ESI be produced “in their native electronic format together with all metadata and other information associated with each document in its native electronic format.” Defendant responded by objecting to nearly every request on the grounds of burden, relevance and privilege, but did not specifically object to the request for native production or propose an alternative format.  Defendant produced responsive documents in a “’load file’ format.”  Three years later, Defendant finally made a specific objection to the requested format and argued that it had already produced ESI in a format approved by the Special Master (an argument the court rejected) and that a party may not demand production in one format versus another “just because one would allegedly ease a party’s review process.”  Ultimately Plaintiffs moved to compel and Defendant sought a protective order.

Plaintiffs argued that Defendant failed to follow the protocol for objecting to a requested format of production under Rule 34 and that its failure to do so, or to propose an alternative, waived any objections to Plaintiffs’ request for native production. Defendant argued that it was “entitled” to disregard Plaintiffs’ request because it had produced ESI in a “reasonably usable” format that did not degrade its searchability and also argued that it had timely objected.

Summarizing broadly, the court rejected Defendant’s arguments, relying substantially on the protocol for requesting and producing ESI under Fed. R. Civ. P. 34(b) and Defendant’s failure to follow it. For example, the court faulted Defendant for failing to timely object to the request for native production or to propose an alternative format and for deciding instead to proceed with production in a format of its choosing.  The court also rejected Defendant’s argument that a party may not demand production in a particular format just because it would ease the review process, reasoning that such an argument was “directly contrary to the governing Rules” and that ease of review was “precisely why the requesting party would specify the format” and “the very reason” a requesting party was “permitted to do so.”  Moreover, regarding Defendant’s argument that it would be unduly burdensome to require reproduction of ESI, the court reasoned that the problem was of Defendant’s “own making” and that had Defendant complied with the rules from the outset, it could have avoided the need for reproduction.  The court indicated it was not necessary to address arguments regarding relevance “once the court has determined that [Defendant] should produce ESI in native format.”

Finally, the court rejected Defendant’s argument that producing in native format would “infringe on the deliberative process, attorney-client privileges and the work product protection” reasoning that such an objection is valid “only to the degree [Defendant] can establish the existence of the privilege, and it has produced a valid privilege log” which, as the court established through additional discussion, Defendant had “failed” to do. Nonetheless, the court declined to “declare a waiver” and instead ordered production of the documents on Defendant’s privilege logs, and gave Defendant 30 days to either produce the documents or “proper privilege logs.”

Ultimately, the court ordered Defendant to produce all data in native format with metadata attached, including any ESI already produced in another format, and to produce all documents withheld as privileged or legally sufficient privilege logs.  Although the court indicated that Plaintiffs were entitled to “reasonable expenses” related to their motion, the request was denied without prejudice, to be renewed using Sacramento rates.