Goodbys Creek, LLC v. Arch Insurance Co., Case No. 07-947 (M.D. Fla. Sept. 15, 2008)

Well, it’s pretty clear that counsel for defendant in this case has not read this blog. If they had, they would have known that they can’t produce ESI in a non-searchable format and expect to get away with it. See White v. The Graceland College Center for Professional Development & Lifelong Learning, Case No. 07-3219 (D. Kan. August 7, 2008) (hard copy production not sufficient), discussed here; and L.H. v. Schwarzenegger, Case No. 06-02042 (E.D. Cal. May 14, 2008) (PDF production not sufficient), discussed here.

Magistrate Judge Howard T. Snyder didn’t have to read the blog. He read the amended Rules of Civil Procedure, which make it pretty clear that “a party responding to a request for production [may] produce documents in a reasonably usable form if the party seeking discovery does not specify the form in which the information is to be produced.” Slip Opinion at 7. As the court pointed out, the Advisory Committee Note explains the limitations of the Rule – as if an explanation was needed:

the option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation. If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.

Slip Opinion at 7-8 (emphasis by the court).

Thus, the court concluded: “to the extent Defendant maintains the requested documents in a form that ‘makes [them] searchable by electronic means,’ Note, its decision to convert the documents to a format alleged to be ‘much more difficult[,]’ to search was impermissible.” Slip Opinion at 8.

The court gave the defendant three options:

Arch will be compelled to provide any documents previously supplied as TIFF images [1]in their native format, [2] provide the documents in another comparably searchable format, or [3] supply Goodbys with software for searching the TIFF images.

Slip Opinion at 8.

Read the opinion