For the opening act, the Court admonished the attorneys for “their lack of cooperation concerning Electronically Stored Information (“ESI”) and the exchange of ad hominem attacks…” Corbello, at *2.
The remaining acts in the opinion danced over the production of electronically stored information and other issues before the closing curtain.
Working My Way Back to Native File Production
In one of the discovery disputes, the Plaintiff claimed the Defendants had not produced all the changes made to the script from the start of the project to the different stage productions. Corbello, at *5. The “New Defendants” admitted that another Defendant had unproduced versions of the script. Corbello, at *6.
Both Defendants did produce hundreds of scripts and drafts in .pdf format. Corbello, at *6.
The New Defendants also produced in hard copy a notebook of page changes. Corbello, at *6. The top of each page included the date the changes were made before the show opened. Corbello, at *6.
The New Defendants also produced in .pdf format two comments made using the notes feature of Screenwriter, a software for writing scripts. Corbello, at *6.
The Plaintiff sought the production of the Screenwriter files in native file format for possible imbedded metadata. Corbello, at *7. The Defendant objected to producing in native file format on the grounds the production would be burdensome and duplicative. Corbello, at *6.
PDF’s Don’t Cry
The Court agreed with the Defendants.
The Court held producing in .pdf format was a “reasonably usable format” that met their discovery obligations. Corbello, at *7.
The Court noted that the parties did not agree to native file productions, other than the Plaintiffs preferred the native file format. Corbello, at *7. Moreover, the Defendants argued they had already produced the information in a reasonably useable format. Corbello, at *7.
As the Court held:
The New Defendants “need not produce the same electronically stored information in more than one form.” Fed.R.Civ.P. 34(b)(2)(E)(iii). The Court finds that to compel additional production of these materials in native format would be an unnecessary burden and an unjustifiable waste of time and resources. The Plaintiff’s request to produce these materials in native format is therefore DENIED.
Corbello, at *7.
Bow Tie Thoughts: Proportionality, Who Loves You?
Courts must guard against productions going out of control. If there had been some showing the imbedded metadata was somehow relevant, this case could have turned out the other way.
Courts are applying principles of proportionality, even though they are not calling it proportionality. While many times parties will not take their eyes off native file productions, in this case producing simply as PDF outweighed the cost of re-producing in native file format.