In EEOC v. SVT, LLC, No. 13-CV-245 (N.D. Ind. Apr. 10, 2014), the district court held that the defendant must produce employee time-keeping data in a “fully searchable and manipulable” format.  The plaintiff requested that the data be produced in a specific native or “near-native” electronic format.  The defendant did not object to that format request, but later produced the data in non-native formats and without “load files” containing metadata.  The court held that the plaintiff was “entitled to have [defendant] produce the data in the format specified” pursuant to Fed. R. Civ. P. 34(b)(1)(C), including with metadata and “load files.”  The court also rejected the defendant’s argument that the data requested was not within its “custody or control” because the data was hosted in a third-party vendor’s electronic time-keeping platform.  The court held that because the defendant had a legal right to obtain the data from the third-party, the data was within the defendant’s custody for purposes of discovery.  In addition, the court rejected the defendant’s argument that it should not be required to re-produce the data at issue because it had already incurred significant cost in producing the data in the non-native format.  The court cited the advisory committee notes to Rule 34, which provide “A party that responds to a discovery request by simply producing electronically stored information in a form of its choice, without identifying that form in advance of the production in the [written] response  . . . runs a risk that the requesting party can show that the produced form is not reasonably usable and that it is entitled to production of some or all of the information in an additional form.”