In Dahl v. Bain Capital Partners, LLC, 2009 WL 1748526 (D. Mass. Jun. 22, 2009), plaintiffs initiated an antitrust action in the United States District Court for the District of Massachusetts against multiple private equity firms and investment banks regarding certain leveraged buyouts. After the parties failed to agree on aspects of electronic discovery sought by plaintiffs, plaintiffs sought entry of an order governing the discovery’s format.
Turning first to the parties’ dispute over who should bear the costs of producing electronic discovery, the court stated the general presumption that a party must bear its own discovery costs, but further noted that costs may be shifted as to electronic discovery if the responding party identifies the source of the requested documents as not reasonably accessible due to undue burden or cost. As defendants had not identified any such accessibility issue, the court held that defendants had to bear their costs of electronic production. The court also held, however, that defendants did not have to bear the costs of optical character recognition (“OCR”) scanning of responsive paper documents or electronic documents that lack text searching capability, as requested by plaintiffs, because Fed. R. Civ. P. 34 only required defendants to produce responsive documents as they are kept in the usual course of business, so that plaintiffs must pay defendants for any requested scanning.
In two paragraphs that appear to address issues not raised by plaintiffs’ motion, the court added that, while Rule 34 suggests that a responding party should “translate” electronic documents where necessary to make them “reasonably usable,” plaintiffs had not demonstrated that translation was necessary. The court also stated that, if defendants elected to change the format of any electronic documents for their own use in the litigation, they should offer plaintiff access to those altered documents.
Turning next to the parties’ disputes about the form in which the electronic documents would be produced, the court rejected plaintiffs’ request for all metadata (i.e., electronic information reflecting the document’s drafting history, ownership, location, etc.) associated with e-mails and word processing documents, noting that multiple courts and the Advisory Committee notes to the 2006 amendment to Rule 34 have all expressed concern that metadata production is expensive, burdensome and inefficient. The court instead encouraged plaintiffs to tailor their metadata request to specific documents or sets of documents. The court further held that spreadsheets must be produced in their “native” format in accordance with Rule 34’s requirement that documents are to be produced as kept in the usual course of business. The court observed that production in native format is necessary to assure that integral elements of the spreadsheets, such as formulae, remain undisturbed. Finally, the court ordered defendants to produce privilege logs in native format.