On appeal, the Eleventh Circuit affirmed, finding that the plaintiff’s failure to provide discovery justified the “last resort” sanction of dismissal.
The court denied a request to produce ESI in native format rather than TIFF files, citing the inability to Bates number a native production.
Citing FRCP 34 regarding the form of production, the court ordered a party to re-produce emails in native format rather than as searchable PDFs.
The court denied sanctions for spoliation, finding that the disputed ESI had been automatically overwritten before the duty to preserve attached.
The court denied sanctions where the plaintiff “accidentally” deleted emails, rejecting as “speculative” the claim that she had a duty to preserve.
The plaintiff stated that he “will produce” responsive discovery when it is available; the court ordered him to supplement this inadequate response.