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Jan
27
Use of obsolete language dooms request for document in electronic format with metadata
January 27, 2008 | 1 Comment
D’Onofrio v. SFX Sports Group, 2008 U.S. Dist. LEXIS 4252 (D.D.C. Jan. 23, 2008)
Several of the discovery disputes between plaintiff requestor and defendant producer centered around electronically stored information. One involved requestor’s attempt to compel producer to produce its business plan in electronic format, including metadata.
Plaintiff had argued that “Rule 34 of the Federal Rules of Civil Procedure permits the production of documents other than in their original format only ‘if necessary.’” and in this case, no such necessity existed. Id. at *7. Judge Facciola responded that plaintiff had misinterpreted the language of the Rule. He explained:
Rule 34(a) does not set forth constraints on the manner of production, but instead establishes the permissible scope of a request. Id. (”A party may serve on any other party a request . . . “). Consequently, the “if necessary” clause seized upon by plaintiff is actually a constraint on the requesting party rather than the responding party. Id. In other words, electronic data is subject to discovery if it is stored in a directly obtainable medium. If, however, it is not stored in a directly obtainable medium, a request may be made of the responding party to translate the electronic data into a “reasonably usable form.” Id. Because the step of translating this type of electronic data adds an extra burden on the responding party, the request may only seek for it to be done “if [the translation is] necessary.” Id. It is not the case that this clause requires the responding party to produce data in its original form unless “necessary” to do otherwise.
Id. at *9-*10.
Plaintiff further argued that she had actually requested the plan in electronic format via the following instruction in her request for production of documents:
[F]or any documents that are stored or maintained in files in the normal course of business, such documents shall be produced in such files, or in such a manner as to preserve and identify the file from which such documents were taken.
Id. at *10. Judge Facciola observed that “[i]t is apparent that this language, when first written, was not meant to encompass electronic data. Instead it addresses a common concern of paper discovery: the identification of a document’s custodian and origination.” Id. at *10-*11. Applying the instruction to electronic media, he stated that
Using this definition, the Instruction can be strained to provide the responding party with two options for producing electronic documents: (a) produce the electronic file containing the document (i.e. a .PDF or .XLS file), or (b) produce the document in such a manner as to “preserve and identify the file from which” it was taken. The inclusion of the word “preserve” makes it very difficult to understand how the Instruction could apply to electronic documents; after all, how can the production of a document without the electronic file encompass the “preserv[ation]” of that electronic file?
Id. at *11-*12. The way the file could be produced as to “preserve and identify the file from which” it was taken would be to include the actual file name “as a “trailer” at the bottom of a printed electronic document containing its location on electronic storage media (i.e. an electronic spreadsheet could be printed on a piece of paper with the trailer “c:\accounting\harry\FY07 charts.xls”).” Id. at *12. The bottom line was that
it is clear that the Instruction, if applicable to electronic files, permits production of the Business Plan in a non-native form without accompanying metadata…Ultimately, then, it does not matter whether the Instruction referred to paper or electronic files — a plain reading leads to the conclusion that plaintiff did not make a request that the Business Plan be produced solely in its original format with accompanying metadata. .”
Id. at *13-*14.
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[...] The first half of the opinion in D’Onofrio v. SFX Sports Group, Inc. is very interesting and well worth reading. It may become well known as a case which exemplifies what can go wrong when a request for production uses obsolete language. The Electronic Discovery blog has already tagged this case for that proposition. The case thus shows the importance for practitioners to study up on e-discovery and use the correct language. Reading e-Discovery: Current Trends and Cases is one way to do that. In any event, I will always remember D’Onofrio as the first case to cite my book. [...]