Another week, another case concerning form of production. This one, Equal Employment Opportunity Commission v. SVT, LLC is from a district court in Indiana, and the recent order begins with a reminder that FRCP 34(b)(1)(C) allows the party requesting discovery to specify which format the ESI is produced. If no format is specified, the producing party must “produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms”. With that said, here’s what happened between these parties:

In an August 20, 2013 written correspondence, the EEOC provided SVT with instructions for SVT’s production of ESI, titled the “Concordance Load File Specifications,” requesting that (1) documents be produced in near native .Tiff format and (2) spreadsheets and databases be produced in native format. Initially, SVT communicated that it could comply with these format requests…

On January 16, 2014, SVT began serving discovery responses. SVT produced spreadsheets in .Tiff format, which was not the native format. SVT produced employment applications in singlepage, non-unitized .pdf and .Tiff format without a load file. In those responses, SVT averred that “[a]ll relevant data has been provided pursuant to industry standards.”

The EEOC’s Lit Support Manager explained in a Declaration why the SVT productions that were in native format, were inadequate:

(1) SVT produced spreadsheet and/or database files, including ESI from Kronos and FMS, as printed images;

(2) SVT did not produce these files in the requested native format as specified by ¶ 8 of the agreed to Concordance Load File Specifications attached to the August 20, 2013 correspondence;

(3) in the format produced, the files are unusable because they cannot be searched or manipulated for analysis.

As for those that were in “near native” format:

(1) SVT produced single-page files in either .pdf or .Tiff format. The scans are not logically unitized, which the EEOC had advised it would not accept in the August 20, 2013 correspondence.

(2) SVT did not include a Concordance load file, which establishes the proper document breaks and maintains parent/child relationships, which was required in the August 20, 2013 correspondence.

(3) SVT’s production stripped the ESI of the necessary document/page relationships and renders them unusable.

(4) The printed images and single page .pdf or .Tiff files are not ESI in the forms in which SVT ordinarily maintains such data and files. In fact, SVT converted the data to a less usable format than the original data.

SVT responded to the EEOC’s motion to compel with several arguments, one of which involves burden. More precisely, it claims that the ESI in question is not “reasonably accessible,” but the court finds that SVT does not prove this enough to satisfy Rule 26(b)(2)(B). There are various facts that do not help SVT’s case:

The EEOC specified the format for ESI in the August 20, 2013 communication. At the parties’ planning conference, SVT’s IT professional indicated that SVT could provide discovery in the EEOC’s designated format. Although SVT reserved its right to object when submitting the parties’ joint planning report, SVT chose to make its objections after producing the documents in a format other than that designated by the EEOC. SVT offers no explanation for this delay. Notably, on three occasions, SVT requested extensions of time to respond to the discovery requests and never indicated its intent to object. If SVT had made its objections in a timely manner, the parties either could have resolved this dispute or sought the assistance of the Court in advance of SVT’s production.

In the end, the Court ordered the parties to meet and confer, and effectively granted EEOC’s motion.