Commercial Litigation and Arbitration

Electronic Discovery — Presumptive Right to Electronically-Stored Information in Native Format

From Superior Prod. P’ship v. Gordon Auto Body Parts, 2008 U.S. Dist. LEXIS 97535 (S.D. Ohio Dec. 2, 2008):

The first issue raised by the motion to compel is whether Gordon should be required to produce documents in their native electronic format. The parties agree that Gordon keeps information in electronic format, but it has produced most of its documents in hard copy. PBSI requests, for a number of reasons, that the documents be produced in their original format.

Gordon's response to this request is that there would be no purpose served by producing the documents in native format because Gordon's computer system does not maintain "metadata" that would provide additional information about the document beyond that shown on the hard copy. Neither its responsive memorandum nor the declaration of Sonny Pan, which is attached to that memorandum, address the relative ease or difficulty of producing these documents in native format.

Federal Rule of Civil Procedure 26, as amended, expresses a preference for the production of electronically stored information in its native format. As PBSI points out in its reply brief, the utility of having documents produced in this format is not limited to being able to view any metadata which might be embedded in the electronic document but not visible on the hard copy. It is often more convenient for the requesting party to receive the documents electronically in order to be able to store them and manipulate them during the litigation process. Here, there do not appear to be any obstacles to the production of the documents in native format, and PBSI has articulated at least one good reason to have them produced in that fashion. Under these circumstances, the Court will direct Gordon to produce documents in their native format.

Share this article:


Recent Posts