Responding to a request for production under Federal Rule of Civil Procedure 34 or a nonparty subpoena under Federal Rule of Procedure 45 is a task often made more arduous and costly when the request or subpoena seeks the production of electronically stored information (ESI). If particular attention is not paid to the ESI format designated in a request/subpoena or if the applicable Federal Rules of Civil Procedure are not strictly complied with in preparing a response, your company will most likely incur the unnecessary expense of correcting a deficient document production as well face exposure to potential attorneys’ fees and costs incurred by the opposing party in resolving the issue through the courts.

Accordingly, if served with a request or subpoena requesting production of ESI, it is critical that the request or subpoena be reviewed at the outset to determine whether or not it specifies the form or forms in which the ESI is to be produced. Additionally, inside and outside counsel must determine if the company is reasonably able to produce the ESI in the requested format.

It is clear that both Federal Rules of Civil Procedure 34 and 45 permit the requesting party to designate the form or forms of ESI production. In fact, the often cited advisory committee notes to the 2006 amendments to Rule 34 acknowledge that “[s]pecification of the desired form or forms may facilitate the orderly, efficient, and cost-effective discovery of electronically stored information.” Therefore, in the event that the request or subpoena designates a particular format, the Rules provide the responding party with the following options:

(1) produce the ESI in the format(s) requested; or

(2) object to the requested format(s) and specify in which form(s) it intends to use.

Additionally, the responding party may seek appropriate relief from the court in order to limit the production of ESI.

However, given that the Rules require the parties discuss discovery of ESI at the outset of the case, including the format(s) in which it will be produced, it is understandable that federal courts are less than sympathetic to responding parties who either: (1) ignore the ESI format set forth in the request/subpoena; or (2) fail to properly object or seek appropriate relief as set forth in the Rules. Further, the advisory committee notes also warn that party that responds to a discovery request simply by producing ESI in the form of its choice and without complying with the Rules runs a risk that the requesting party can show that it is entitled to some or all of the production in a different form.

Recently, in S2 Automation, LLC v. Micron Technology, Inc., the district court was faced with this exact situation. There, the defendant served the plaintiff with a request for production which sought production of ESI in certain forms (including certain records produced in native format and others produced in single-paged Tagged Image Filed Format (TIFF)). Id. at *4. The plaintiff did not object to the form of the ESI requested, but instead produced the ESI in PDF format. Id. at *70. In granting the defendant’s motion to compel, the court ordered the plaintiff to reproduce the ESI in native format or the form requested by the defendant and specifically noted that the any additional costs to reproduce the discovery were the result, in part, of plaintiff’s own conduct in not complying with the defendant’s discovery requests. Id. at *68 and *70. Further, the district court awarded certain attorneys’ fees and costs to the defendant for bringing the motion to compel. Id. at *132. See also Cenveo v. Southern Graphic Sys. (granting defendant’s motion to compel and ordering reproduction where plaintiff’s production of ESI in PDF form did not comply with request for production which specified production in native form and where plaintiff failed to object to production in native format).

Given the foregoing, it imperative that inside and outside counsel have a clear understanding of the company’s technology infrastructure so that if served with a request or subpoena that seeks ESI in a particular format, counsel will be in a position to quickly assess the company’s ability to comply or if it will need to seek appropriate protection from the court by way of objection, protective order or otherwise.