No Native for You! Judge Denies Plaintiff’s Request for Native Production


Secure Energy, Inc. v. Coal Synthetics, 2010 U.S. Dist. LEXIS 13532 (E.D. Mo. Feb. 17, 2010)

Plaintiff initially served their discovery requests on Defendnat on December 31, 2008. Plaintiff asked for “[a]ll documents relating to engineering plans and drawings developed as a result of the equipment bidding process for the Coal Synthetics Project(s).” On February 2, 2010, Plaintiff filed their motion for leave to file a motion to compel asking for production of the plans and drawings in native format. The discovery deadline was November 20, 2009 and all motions to compel were due by December 1, 2009. Requestor sought the drawings in native format because the metadata would show who created the drawings and whether they were created from another file, which would support requestor’s claim that the drawings were misappropriated.

Producer pointed to two letters from requestor’s counsel regarding the discovery dispute which did not mention the request for native format. On November 10, 2009, in a letter to producer, requestor observed that producer’s production was not in native format. On November 16, producer replied that the joint proposed scheduling plan did not mention production of ESI or metadata. A week later, requestor sent a letter to producer demanding production in native format. Producer did not respond. On January 11, 2010, requestor sent another letter requesting production in native format, and producer responded that the issue had been resolved in the November 16 letter, and also asked why requestor had waited for two additional months to resolve the issue. Following additional correspondence, requestor filed the motion to compel on February 2.

The court denied the motions on several grounds. First, the motion was denied as untimely, as requestor could have filed the motion to compel prior to the December 1 deadline. Second, producer had fulfilled their discovery obligations. Requestor’s initial request did not specifically request production of the documents in native format. Producer complied with Rule 34 by producing the drawings in both paper and PDF format. Third, the court found that producer would be prejudiced by the request. Producer would have had to produce AutoCAD .dwg files, which producer asserted would have required expert assistance to retrieve or interpret the metadata. The deadlines for designation for expert witnesses had passed, and would possibly require additional discovery, the refiling of producer’s summary judgment motion, and a reset of the trial date.

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