Careful What You Ask For – Proper Formatting of Requests for Production of Electronically Stored Information

February 1, 2008

A federal magistrate judge for the U.S. District Court for the District of Columbia recently handed down an opinion addressing the plaintiff’s Second Motion to Compel Discovery, and for Sanctions in D’Onofrio v. SFX Sports Group, Inc., Civ. A. No. 06-687 (JDB/JMF), 2008 U.S. Dist. LEXIS 4252 (D.D.C. Jan. 23, 2008), a lawsuit seeking damages for a variety of employment discrimination claims.

The Court considered, among other things, whether the plaintiff was entitled to receive Defendant SFX Sports Group’s Business Plan “in its original electronic format, with accompanying metadata.” Id. at *7. D’Onofrio argued Rule 34 of the Federal Rules of Civil Procedure required that documents may be produced outside of their original format only “if necessary,” and no such necessity existed in this case. Rule 34(a)(1)(A) states, in pertinent part, that a party may request the production of an electronic document “stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.” The Court concluded that Rule 34’s “if necessary” clause does not require a responding party to produce data in its original form unless “necessary” to do otherwise. Rather, the Court held that this language “establishes the permissible scope of a [Rule 34] request” and applies only to the requesting party. Id. at *9.

Continuing, the Court nevertheless found that D’Onofrio could have been entitled to the Business Plan in the format she requested, but her request for production from SFX Sports Group was insufficient. D’Onofrio contended that her instruction, “[f]or any documents that are stored or maintained in files in the normal course of business, such documents shall be produced in such files, or in such a manner as to preserve and identify the file from which such documents were taken,” specified adequately that she wanted the Business Plan in its original form with metadata. The Court disagreed and applied Rule 34(b)(2)(E)(ii), which allows a responding party to produce electronically stored information “in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms” when the requesting party “does not specify a form for producing” such information.

The practical application for litigants seeking electronically stored information pursuant to Rule 34 is to make sure these requests specifically ask for the preferred format and the metadata accompanying that format. It can be difficult or impossible, as was the case for D’Onofrio, to shoehorn such a request into another request for production that is vague or broad.

For parties responding to electronic discovery requests, the clear implication from this decision is that unless the requesting party specifies a particular format for the production, the responding party should produce the responsive electronic information, wiped clean of metadata, in a format that serves both its business and legal needs.