A Plaintiff produced Excel spreadsheets in TIFF format. As one could expect, the Defendant brought a motion to compel in native file format faster than you can sort a column in ascending order. Mitsui O.S.K. Lines, Ltd. v. Seamaster Logistics, Inc., 2011 U.S. Dist. LEXIS 117922 (N.D. Cal. Oct. 12, 2011).
The Court quickly held the Excel spreadsheets be produced in native file format.
Federal Rule of Civil Procedure Rule 34(b)(2)(E)(ii) requires that ESI created in an electronic format must be produced in “the form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Mitsui O.S.K. Lines, Ltd., at *1.
The Court sited the Advisory Committee’s Notes to the 2006 Federal Rules of Civil Procedure Amendments, which states:
The rule does not require a party to produce electronically stored information in the form it which it is ordinarily maintained, as long as it is produced in a reasonably usable form. But the option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation. If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.
Mitsui O.S.K. Lines, Ltd., at *1-2, citing Fed R. Civ. P. 34, Advisory Committee’s Note to the 2006 Amendment.
The Court further stated that form of production cases have held it is “improper to take an electronically searchable document and either destroy or degrade the document’s ability to be searched.” Mitsui O.S.K. Lines, Ltd., at *2.
Based on the above, the Court required the production of the Excel files in native format, maintaining search capabilities, formulae, and other features, intact. Mitsui O.S.K. Lines, Ltd., at *3.
Bow Tie Thoughts
Judge Facciola in Covad Communs. Co. v. Revonet, Inc., stated the following on producing Excel files as non-searchable tiffs:
Understandably, taking an electronic document such as a spreadsheet, printing it, cutting it up, and telling one’s opponent to paste it back together again, when the electronic document can be produced with a keystroke is madness in the world in which we live.
Covad Communs. Co. v. Revonet, Inc., 260 F.R.D. 5, 9 (D.D.C. 2009).
Parties can save time and money by producing Excel files as they are ordinarily maintained. Taking a native file and converting it to a non-searchable file inherently drives up the production costs charged by a service provider. Moreover, it drives up the cost to review the file, because the information is no longer searchable, requiring more time spent reading multiple TIFFs, instead of coded information in a review database.
Excel files, by their very nature of having formulas and other data, have information populated in multiple fields and on different tabs. Converting these files to TIFFs causes an explosion of pagination, where a single file can turn into a several hundred-page TIFF. This creates challenges in document review exactly as Judge Facciola described, where document review regresses to basket weavers putting shredded documents back together again.
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