D'Onofrio v. SFX Sports Group: Literally Following the Rules in Rule 34(b)

D'Onofrio v. SFX Sports Group: Literally Following the Rules in Rule 34(b)

Over a year ago, when we were all still discussing the new rules, the debate around Rule 34(b) was whether the "ordinarily maintained" language in that rule required production in native format with metadata intact. Since December 1, 2006, however, the courts have had little to say about Rule 34. This appears to be because parties are taking advantage of their obligations under Rule 26(f) and discussing form of production in their meet and confer. Interestingly, although native production and metadata still seem to be at the center of the few published opinions where parties could not agree, the courts have not been interpreting the "ordinarily maintained" language, but rather have been looking at whether the procedures laid out in the Rule for requesting or objecting to native and metadata production have been followed. See, e.g., In re Payment Card, 2007 U.S. Dist LEXIS 2650 (E.D.N.Y. Jan 12, 2007)(although in the court's opinion the plaintiff's production ran afoul of the requirements in Rule 34, because defendant did not object to the form used by plaintiff, there was no requirement to re-produce in native format). If one of the parties has not complied with those procedures, the inquiry ends there; and the party who has followed the rules typically wins the battle. See Schmidt v. Levi Strauss & Co., 2007 U.S. Dist. LEXIS 69791 (N.D. Cal. Sept 10, 2007)(applying pre-amended Rules, the court nevertheless held that because plaintiff did not object to party's production in hard copy, re-production in electronic, native format was not required); compare Lawson v. Sun Microsystems, Inc., 2007 U.S. Dist. LEXIS 65530 (S.D.N.Y. Sept. 4, 2007)(because party properly requested production in native format but defendant did not timely object or seek agreement with plaintiff before producing in hard copy, defendant was required to re-produce in native format). If, on the other hand, procedures for requesting and objecting have been met, the inquiry has then shifted outside of the language of Rule 34, to the broader issue of whether native files and metadata are relevant in light of costs and burdens. See Michigan First Credit Union v. Cumis Ins. Society, 2007 U.S. Dist. LEXIS 84842 (E.D. Mich. Nov. 16, 2007)(plaintiff properly requested production in native format with metadata and defendant timely objected; analysis shifted to relevance of data and burden of such production). This emphasis on "following the rules" in the production of native files and metadata was crystallized in an opinion today from Judge John Facciola, Magistrate Judge from the Distinct of the District of Columbia, one of our most prolific and knowledgeable judges on the topic of e-discovery. In Audry D'Onofrio v. SFX Sports Group, Inc., 2008 U.S. Dist. LEXUS 4252 (D.D.C. Jan. 23, 2008), plaintiff D'Onofrio filed a motion to compel defendant to produce a Business Plan and e-mails in their "original format" with metadata as she had requested. The court found, however, that she had not so requested and held that the instructions in plaintiff's interrogatories -- that documents be produced in their files or "in such a manner to preserve and identify" the file from which the documents were taken -- pertained to physical file cabinets or folders. Straining to read the instruction to apply to electronic documents, the court held that the instruction's alternative of production via "preserving and identifying the file" from which it was taken could pertain to a trailer at the bottom of a printed electronic document. This interpretation would suggest that the plaintiff had not, in fact, requested the information be produced exclusively in native form with metadata. Because plaintiff did not specify the forms or forms, the inquiry ended there; there was no need for further analysis regarding whether native files and metadata were warranted in the case. The approach taken by Judge Facciola and the other courts that looked at this issue is the right one. Form of production is an issue that should be agreed upon by the parties. Each case is different: each has different documents, file formats, and requirements, and no one format fits all. It will be interesting to see if the trend in Rule 34, a trend that we are seeing in all of the Rules - courts mandating agreement on e-discovery issues - will continue. If so, then the Rules are having their desired effect.