Court Orders Native Production Absent Explanation of Allegedly Burdensome Cost and Upon Showing of Good Cause

Mitchell v. Reliable Sec., LLC, No. 1:15-cv-03814-AJB, 2016 WL 3093040 (N.D. Ga. May 23, 2016)

Addressing the parties’ dispute over the proper format of production—specifically, whether ESI should be produced in native format or PDF—the Court found Defendant failed to make an adequate showing that production of native files was cost prohibitive and that, in any event, Plaintiff had shown good cause, and ordered production of ESI in native format.

In this employment discrimination case, Defendant resisted production of ESI in native format, arguing that it would cost approximately $3000 more to process and produce in native format than it would to produce in PDF format and that the cost was unreasonable in light of the likely damages in the case, which Defendant estimated to be “less than $10,000.”

Plaintiff, in turn, argued that production of native emails and spreadsheets was necessary because they were susceptible to post hoc manipulation by Defendant and that Defendant’s statement regarding the estimated additional costs of production was “insufficient” for a number of reasons, including Defendant’s failure to explain how it arrived at the estimate, Defendant’s advertised use of “discovery management software commonly used to streamline ESI production,” and Plaintiff’s counsel’s offer to assist in downloading emails to minimize costs.  Plaintiff also asserted that damages could range from $50,000 to $300,000, plus lost wages and benefits and attorneys’ fees.

Taking up the issue, the Court considered Fed. R. Civ. P. 26(b)(2)(B), which precludes discovery of ESI shown to be “not reasonably accessible because of undue burden or cost” but which allows a requesting party to nonetheless establish good cause for production. Regarding Defendant’s assertion of burden, the Court determined that Defendant “ha[d] not explained the reason for the additional costs” and indicated that the Court was “at a loss to understand” why the production would be more costly.  Accordingly, the Court found Defendant had not “made an adequate showing that production of the native files is cost prohibitive.”

Notably, the Court also found that even if Defendant’s showing had been adequate, Plaintiff had shown good cause for production in native format. Specifically, the Court indicated it was “not at all unreasonable” for Plaintiff to wish to verify that ESI had not been manipulated, despite acknowledging that “there ha[d] been no specific reason so far” to believe such manipulation had occurred.  Additionally, the Court reasoned that although “it [did] appear that Plaintiff’s suit [was] unlikely to be of an especially high dollar value … the public value of allowing a civil-rights plaintiff opportunity to access information relevant and quite possible necessary to her pregnancy-discrimination suit far outweigh[ed] the asserted $3000 cost.”

A full copy of the Court’s order is available here.