Native Production or Tiff Production? Avoiding Sanctions

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Larsen v. Coldwell Banker Real Estate Corp., No. SACV 10-00401-AG (MLGx), 2012 U.S. Dist. LEXIS 12901 (C.D. Cal. Feb. 2, 2012)

Plaintiffs’ request for production of ESI in native format, with metadata intact was granted by the Court, despite Defendant’s having already produced the material in the common TIFF format.

Plaintiffs objected to defendant’s revised production, questioning the integrity of the native production based upon the following:

(1) MD5 file mismatches between the “digital fingerprints” produced by Defendants and the corresponding values of the produced native files; (2) mismatches between the file type extensions of the native files given by Defendants and the file type extensions of the produced native files themselves; (3) missing filesystem metadata, including the dates on which documents had been created and modified by their custodians and filepaths; (4) unverifiable filenames; and (5) mismatches of MD5 file calculations: .xls, .ppt and .html and the selection of appropriate fields to conduct email calculation matches.

Plaintiffs also asserted that the Defendants made an incomplete collection of data and that responsive information was being withheld. In addition, plaintiffs asserted that defendants had failed to retrieve data from an Oracle database containing relevant information that was used to oppose a class certification motion.

Plaintiffs requested that defendants’ detail the process used to process ESI under oath, that a neutral third party re-collect and process the ESI, and that Defendants provide access to the full Oracle database. Defendant responded that their production was adequate, and that the cost far outweighed the benefit from the requested relief.

The court utilized the following principle set forth in the second edition of the Best Practices Recommendations & Principles for Addressing Electronic Document Production from the Sedona Conference. Principle 7 states that the requesting party has the burden to demonstrate that the preservation and production of ESI by the producing party is inadequate. Principle 2 provides that the proportionality standard of Rule 26(b)(2)(C) should be used to guide the burden/benefit analysis for the reproduction of ESI.

The court determined that the plaintiffs was unable to show that the Defendant’s preservation and production of ESI was inadequate. The “isolated examples” cited by plaintiffs failed to demonstrate that defendants had not complied with the court’s order. Plaintiffs also failed to show that the deficiencies in the production “prevented them in any way from obtaining information relevant to a claim or defense under Fed. R. Civ. P. 26(b)(1).” Finally, the cost and burden to reproduce the production a third time “far outweighs any possible benefit to Plaintiffs”. The original production had required over 1000 man hours of review and cost hundreds of thousands of dollars. The court thereby denied plaintiffs’ requested remedies.

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