2008-06-09 No Ask, No Get - With a Twist

In a May 29, 2008 decision in Perfect Barrier LLC v Woodsmart Solutions, Inc. the Court provides a reminder as well as a twist on what is fast becoming "native format" wars. First, the Court notes that it is the obligation of the requesting party pursuant to Fed. R. Civ P. 34(a) and (b) to specify with particularity the format and manner of ESI. (For those of you just tuning in, ESI is short for "electronically stored information" as set forth in the 2006 amendments to the Federal Rules of Civil Procedure). It cannot be stressed often enough that a failure to do so waives the right to so specify, and permits the producing party to produce what it likes, so long as it may be considered reasonably usable. That determination will, and in this case was, made by the Court. What is interesting about this decision is that the requesting party chose not to request "native format data," and upon having received NFD, instead asked for "static images."

Rule 34 is being increasingly interpreted to mean one chance to request format of production. Unlike baseball, with three strikes, and unlike softball, with two strikes, courts will give a requesting party one chance to articulate what they want, and how they want it produced.

Relevant excerpt:

"Perfect Barrier did not request that the emails be produced in a particular form, yet Perfect Barrier now asks this Court to force Woodsmart to produce the electronic emails as Static Images with a bates-number identifier. Woodsmart objects to this request because it would cost a substantial sum of money to convert the documents from the form in which the documents are normally kept, Native format, to Static Images."

"Woodsmart has already produced the emails on a disc in Native format. Woodsmart maintains the email documents in such a format. Fed.R.Civ.P. 34 only requires Woodsmart to submit the emails in the format in which it keeps them, Native format , and nothing more. While it may be more convenient for Perfect Barrier to have the emails as Static Images, Fed.R.Civ.P. 34 does not provide that convenience is a basis for requiring electronic discovery to be produced in a different format than normally maintained. If Perfect Barrier wanted the emails as Static Images, it should have specified this request in its requests for production, which it did not do." Perfect Barrier LLC v. Woodsmart Solutions Inc. 2008 WL 2230192, 3 (N.D.Ind.,2008)