Production of Email in Native Format Satisfies Fed. R. Civ. P. 34(b)(2)(E)

Perfect Barrier LLC v. Woodsmart Solutions Inc., 2008 WL 2230192 (N.D. Ind. May 27, 2008)

In this case, one of plaintiff’s requests for production sought emails — plaintiff provided defendant with search terms and desired to have all emails that contained the relevant search terms.  Defendant complied with the request and produced approximately 75,000 pages of email documents on disk.  However, defendant designated the entire email production as Type C documents, “Attorney-Eyes-Only," pursuant to the parties’ agreed protective order. 

Plaintiff thereafter filed a motion to compel compliance with the protective order, and for sanctions.  At issue was whether defendant violated the terms of the parties’ protective order by designating all emails as “attorney eyes only,” and whether defendant should be required to re-produce the email in a different format.

“Attorneys Eyes Only” Designation

The Magistrate Judge noted that the agreed protective order allowed a party to designate a group of documents by category, but did not indicate what constitutes a legitimate category.  The court continued:

Consequently, even though Woodsmart’s designation of “emails” resulted in a very large category, it is a category.  Nothing in the protective order prevents large categorical designations.  If Perfect Barrier desired Woodsmart to be more selective in its use of the confidential designation, Perfect Barrier should have utilized more care in drafting the agreed protective order to include more particular language that is consistent with its position.  As it stands, the language of the protective order simply requires a “category” designation.  Therefore, this Court finds that Woodsmart followed and did not violate the protective order.

While Perfect Barrier may have a voluminous amount of discovery to parse through, it has no entity to blame except itself.  Perfect Barrier provided the search terms to Woodsmart as part of its request for production of the email communications.  Woodsmart produced every document that appeared with those search terms.  In other words, Woodsmart provided Perfect Barrier with every possible document that Perfect Barrier requested.  It was Perfect Barrier’s expansive request that produced such voluminous discovery.

Format of Production

Plaintiff asked the court to order defendant, to the extent it reconsidered its confidentiality designation, to re-produce the affected documents in hard copy form and bear the costs associated with the conversion and reproduction.  Defendant had originally produced the emails in native format on a computer disk.

The court observed that plaintiff had not requested that emails be produced in any particular form, “yet Perfect Barrier now asks this Court to force Woodsmart to produce the electronic emails as Static Images with a bates-number identifier.”  Defendant objected to the request because it would cost a substantial sum of money to convert the documents from the form in which the documents were normally kept, native format, to "Static Images."

The court pointed out that Rule 34 “only requires Woodsmart to submit the emails in the format in which it keeps them, Native format, and nothing more.”  It continued:

While it may be more convenient for Perfect Barrier to have the emails as Static Images, Fed. R. Civ. P. 34 does not provide that convenience is a basis for requiring electronic discovery to be produced in a different format than normally maintained.  If Perfect Barrier wanted the emails as Static Images, it should have specified this request in its requests for production, which it did not do.

Furthermore, this Court finds that the emails produced on an electronic media such as disc is reasonably usable.  Perfect Barrier can access, examine, and even print the communications.  While Perfect Barrier may prefer to have them as Static Images, the burden to convert the emails to Static Images remains with Perfect Barrier.  Woodsmart complied with Fed. R. Civ. P. 34(b)(2)(E) and is required to do nothing more.

Thus, the court denied plaintiff’s motion, ordered the parties to submit a discovery plan and set a Rule 16(b) conference.