Neither party emerges as clear winner where both disregarded the rules of discovery

In this employment discrimination case, the court admonished both litigants for violating the rules of discovery. Ultimately, the court denied the plaintiff’s request for native format re-production because she offered no “compelling reason” to justify it.

Late in the fact discovery period, the plaintiff, Lavonne Baker, served 54 requests for production on Santa Clara University (SCU). The last request addressed the previous 53, demanding that SCU “produce all documents in native format.” The request specifically asked for all metadata and electronically stored information (ESI).

SCU promptly produced over 2,500 pages of documents, but it did so in PDF format without any accompanying metadata. SCU did not claim that these documents were maintained as PDF files in the ordinary course of its business.

Predictably, Baker moved to compel re-production of all discoverable documents in native format with metadata intact. Her primary argument: having native format documents would make it easier to determine whether SCU withheld responsive ESI.

SCU responded that it had “attempted to engage” Baker’s counsel in discovery discussions under Federal Rule of Civil Procedure 26(f). Those attempts evidently failed, as Baker’s counsel “did not meaningfully engage in the required discussion.” SCU argued that at this stage, re-producing ESI in native format would be “time consuming, burdensome, and expensive.”

The court noted dryly that “neither party has complied with the rules and guidelines” governing discovery. SCU did object to Baker’s request for native format production as required by Rule 34(b)(2), but it failed to state the form it intended to use. Nor did it organize or label its production as required by Rule 34(b)(2)(E)(i).

Baker fared worse. The court observed that she “appear[ed] to have utterly failed to comply” with Rule 26(f). Baker’s refusal “to meaningfully engage in any discussions” about the search methodology undercut her argument for re-production.

Now, the parties were in a dispute that they could have “avoided had they both complied with their respective and mutual discovery obligations.”

The court turned to the “dual requirements of relevance and proportionality” in Rule 26(b)(1). It concluded that Baker offered no “specific, articulable basis” to conclude that SCU had withheld discoverable documents. Therefore, at this time, she did “not have a compelling reason” to demand re-production in native format.

Simultaneously, SCU’s production was “not particularly voluminous,” and its objections about re-production were conclusory.

Therefore, the court denied Baker’s motion for full re-production in native format. However, that denial was without prejudice. The court elaborated that Baker could request re-production of specific documents if she could explain why native format was necessary.

Shortly afterward, the parties reached a settlement agreement.

Takeaways on Producing Discovery

As we all know, two wrongs don’t make a right. Here, SCU took a gamble by converting its documents to PDFs and omitting all metadata. Fortunately for SCU, Baker’s poor discovery practices and eleventh-hour timing offset that wrong. Don’t run the risk. If your opponent requests a reasonable volume of native-format documents with metadata, why engage in time-consuming and costly document conversions? A savvier litigant might point out that this extra step could demonstrate a guilty conscience.