New Bad Idea: Claiming You Can Produce ESI as PDF’s because “Native File” is “Ambiguous”

In Cenveo Corp. v. Southern Graphic Sys., 2009 U.S. Dist. LEXIS 108623 (D. Minn. Nov. 18, 2009), the Defendant propounded the following discovery request:

“Defendant requests that these documents be produced in native format with all attachments in native format.” Cenveo Corp., at *2.

The Plaintiff produced all electronically stored information as PDF’s.  Cenveo Corp., at *2.

The Plaintiff argued (and probably very forcefully) that since the Defendants did not define “native format,” the PDF production complied with Federal Rule of Civil Procedure Rule 34(b)(2)(E)(ii).  Cenveo Corp., at *3. This Rule provision states the following:

“If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Fed. R. Civ. P. 34(b)(2)(E)(ii).

The Plaintiff’s argument that the “failure” to define “native format” thus allowed them to produce ESI as PDF’s was not quite the Hindenburg of “form of production” arguments, but it did go down in flames.

The Court held that the term “native format” was “unambiguous.”  Cenveo Corp., at *3-4.  Moreover, the Court found the Plaintiff failed to comply with the Defendant’s request for native file production and Federal Rule of Civil Procedure Rule 34(b)(1)(C), which allows a requesting party to specify the form of production.   Cenveo Corp., at *4. 

The Court recounted multiple cases and several secondary sources which define “native format.”  The reoccurring theme for the definition of “native format”  is the “default format of a file,” which is “typically provided through the software program on which it was created.” Cenveo Corp., at *4, citing Aguilar v. Immigration and Customs Enforcement Div. of U.S. Dept. of Homeland Sec., 255 F.R.D. 350, 353 n.4 (S.D.N.Y. 2008).

The Court held that Plaintiff had to produce (or re-produce) responsive electronically stored information in native file format.  Cenveo Corp., at *7-8.  The Court further found that the Defendant’s requests were neither overly broad or unduly burdensome.  Id. Moreover, the Plaintiff offered no argument why it could not produce the ESI in native file format.  Id. As such, the Plaintiff was required to produce their electronically stored information as native files.

Bow Tie Thoughts

Courts are not tolerating parties who play games such as “I don’t know what you mean by ‘native format’?”  Electronically stored information is part of everyday life with people using Droids and sending mobile Facebook updates.  While there will always be gamesmanship in litigation, claiming “native format” is an undefined term is like asking, “what do you mean by ‘paper’?”

4 thoughts on “New Bad Idea: Claiming You Can Produce ESI as PDF’s because “Native File” is “Ambiguous”

  1. Pingback: Tweets that mention New Bad Idea: Claiming You Can Produce ESI as PDF’s because “Native File” is “Ambiguous” « Bow Tie Law’s Blog -- Topsy.com

  2. Pingback: Bad idea: Claiming that the term “native file” is ambiguous | Gabe's Guide to the e-Discovery Universe

  3. Josh: Don’t confuse a bad argument with bad argument… ‘native format’ and ‘native file format’ are not synonymous. There had to be a fundamental failure of the meet and confer process and a failure to articulate the problem by counsel to the court that lead to this result.

    While common ken would hold contrary, most of the information held by business is not held as a single unit (‘document’) represented by a single file in the file system of the custodian. Even if it was created by a common end-user application, the information is often held as a data object, not as a file. The classic example is an email message which is held as a message object in an email database. Converting this object to a file is not lossless whether doing so to .msg format or .pdf format. Yet if I give up a msg, nobody complains. If I give up a fully formatted PDF, using all the features that format provides, everybody still complains. Moreover, if I collected, processed and produced information created and managed in a hierarchical file system, such as Unix or Mac OS, giving you a single file would not give you all the content you deserved.

    ‘Native format’ is easy when talking about end-user held, unstructured information generated as ‘WESI’ (read: “Windows-generated electronically stored information.”) It is completely ambiguous when discussing most other electronically stored information. The new ‘ostrich head in the sand’ is WESI, which leaves vast amounts of information untouched simply because the profession, and the technology industry that supports it, have not fully come to grips with methods to manage anything but WESI.

  4. Pingback: Floppy Disk Wars: Form of Production & Computer Battles from the 1980s « Bow Tie Law’s Blog

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