Court Grants Protective Order Shielding Plaintiffs From Re-Producing ESI in Native Format, But Denies Relief as to Prospective Production

In re Payment Card Interchange Fee and Merchant Discount Antitrust Litig., 2007 WL 121426 (E.D.N.Y. Jan. 12, 2007)

This case is a consolidated multidistrict litigation brought by some plaintiffs as a putative class action, as well as by other individual plaintiffs who sued exclusively on their own behalf. In this decision, Magistrate Judge James Orenstein addressed a dispute that arose between the individual plaintiffs and the defendants regarding metadata and the format of production. Between June and November 2006, the individual plaintiffs had made at least six productions of electronic documents using their own protocol, which involved printing electronic documents and then scanning the pages thus printed to create “TIFF” images, which could be converted into a searchable text file through the use of “OCR” software. “In other words, Individual Plaintiffs have rather laboriously stripped their text-searchable electronic documents of metadata that would not appear in printed form, and then converted them back into text-searchable electronic documents without that subset of metadata.”

In September 2006, counsel for the class plaintiffs, acting on behalf of all plaintiffs, sent to the defendants’ counsel a proposed stipulation to govern the form in which electronic documents would be produced by all parties. A week later, defense counsel replied with a counterproposal. Negotiations continued but the individual plaintiffs objected to the counterproposal, and in a periodic joint discovery report to the court, the defendants objected to the individual plaintiffs’ protocol for producing electronic documents. Defendants argued that the process degraded the searchability of the documents and contravened the intent of the 2006 amendments to Rule 34.

The court noted that, when defendants raised the objection to the court for the first time, they had already received substantial production from the individual plaintiffs. Further, although defendants had not filed a formal motion to compel, they insisted that the individual plaintiffs were obliged to produce all electronic data in the form in which it is ordinarily kept. The parties submitted letter briefs on the issue, and the individual plaintiffs requested a protective order that would shield them from any obligation to make the kind of production the defendants sought, in the event the court construed the dispute as a motion to compel by the defendants.

After finding that the amended Rule 34 applied to the proceeding, the court concluded that “requiring the Individual Plaintiffs to re-produce data that they have already produced in searchable form (albeit possibly not searchable in every way that the defendants would like), or that they have already substantially processed for such production, would impose an undue burden on them.” It further noted that plaintiffs had produced a significant amount of material under their preferred protocol and heard no objection for several months. Thus, it concluded that, while defendants were not necessarily “estopped” from insisting on a format of production more to their liking, it would be less fair to impose the costs of a second production on the individual plaintiffs.

The court viewed prospective productions differently, however. It stated: “Now that the Individual Plaintiffs are aware of the defendants’ objections, their argument of undue burden is weaker; indeed, they have conceded that their concerns about the burdens of producing electronic documents in native format largely disappear with respect to the documents they have not yet processed for production.” The court stated that, in the event defendants were successful on a future motion to compel production in native format, “the Individual Plaintiffs will have no one but themselves to blame for incurring the additional costs of making a second production.”

Accordingly, the court granted the application for a protective order “exempting the Individual Plaintiffs from producing electronically stored metadata in its native format to the extent such information was processed for production to the defendants on or before January 12, 2007, and I deny the application to the extent it seeks similar relief on a prospective basis.”