California Department of Education Gets Schooled in Ediscovery Production Formats
Morgan Hill Concerned Parents Ass'n v. Cal. Dep't of Educ., 2017 U.S. Dist. LEXIS 14983 (E.D. Cal. Feb. 1, 2017) In this discrimination case, the plaintiffs asked the court to compel the defendant to produce electronic information in its native format, including metadata. Initially, the defendant objected based on relevance, burden, and privilege, but not the format. Instead, the defendant provided the documents in a “load-file format” instead of the native file format. Nearly three years later, the defendant objected to the plaintiffs’ format request, arguing that it already provided the requested documentation in a “standard” format and it would be costly to reproduce. The defendant also claimed that a party is not allowed to request a certain format “just because [it] would allegedly ease a party’s review process,” and that the plaintiff’s request would violate the attorney-client and attorney work product privileges. The court rejected the defendant’s arguments. First, relying on Federal Rule of Civil Procedure 34(b), the court pointed out that a requesting party is permitted to specify the form in which ESI is to be produced. The responding party may object, but it must then inform the requesting party which format it intends to use. Any further disagreement on format between the parties invokes a requirement to confer under Rule 37(a)(2)(B). The court held that the defendant failed to respond timely to the requested production format. The court also rejected the 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.” Further, the defendant’s cost to reproduce the documents is its own doing, as the defendant ignored the initial request and produced the documents in a manner of its own choosing. Lastly, the court found that the defendant waived its privilege claim because the defendant repeatedly failed to produce a valid privilege log.