Commercial Litigation and Arbitration

Producing Documents in Non-Searchable TIFF Format Violates Rule 34 If Producing Party Maintains Them in Any Searchable Format

From Goodbys Creek, LLC v. Arch Ins. Co., 2008 U.S. Dist. LEXIS 79660 (M.D.Fla. Sept. 15, 2008):

Neither party disputes Goodbys' failure to specify a desired format for the documents.... Because of such failure, Arch chose, of its own accord, to produce the requested documents "via TIFF images" rather than in their native format.... Plaintiff argues by converting the documents to Tagged Image File Format (TIFF) Defendant failed to comply with Rule 34(b)(2)(E)(ii), ... which states "[i]f 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[.]" Therefore, Goodbys requests this Court compel Arch to produce the requested documents in their native format....

According to Defendant, Rule 34 "permits a party responding to a request for production to produce documents in a reasonably usable form if the party seeking discovery does not specify the form in which the information is to be produced." ... Contrary to Goodbys' contention, Arch argues "TIFF images are a reasonably usable form of electronic production." ... However, the responding party's choice of form is limited to the extent

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.

Rule 34 advisory committee's note (2006 Amends.) (Note) (emphasis added); see also In re Seroquel Prods. Liab. Litig., 244 F.R.D. 650, 655 (M.D. Fla. 2007) (highlighting the importance of searching functions and the utility of native formats); Hagenbuch v. 3B6 Sistemi Elettronici Industriali S.R.L., No. 04 C 3109, 2006 WL 665005, at *3-*4 (N.D. Ill. Mar. 8, 2006) (finding TIFF images inadequate). I t appears Goodbys' central complaint regarding Arch's conversion of the requested documents into TIFF files is the conversion has made searching the numerous documents "much more difficult[,]" ... the very concern the [Advisory Committee] Note addresses.

Therefore, to the extent Defendant maintains the requested documents in a form that "makes [them] searchable by electronic means," [Advisory Committee] Note, its decision to convert the documents to a format alleged to be "much more difficult[,]" ... to search was impermissible. Consequently, Arch will be compelled to provide any documents previously supplied as TIFF images in their native format, provide the documents in another comparably searchable format, or supply Goodbys with software for searching the TIFF images.

Share this article:


Recent Posts