E-Discovery: Employer Not Subject to Discovery Sanction for Failure to Produce Documents in "Native Format"
In 2006, the Federal Rules of Civil Procedure were amended to provide specific rules about the discovery of electronically stored information (“ESI”). Among other things, the amendments established rules governing the ESI production format. Discovery in employment discrimination cases frequently becomes bogged down in disputes over whether, and how, ESI will be produced. Attorneys representing employees often seek production of documents in “native format”—i.e. the electronic format in which the document was created. Native format production permits access to a file’s “metadata,” which can sometimes show changes made to a document or file. Employees’ attorneys believe that metadata will reveal “smoking gun” evidence of discriminatory intent. In contrast, employers—even those with nothing to hide—avoid native format production because of the associated expense and hassle.
In Chapman v. General Board of Pension & Health Benefits of United Methodist Church, a magistrate judge from the U.S. District Court for the Northern District of Illinois explained under what circumstances a party must produce ESI in native format. In that case, Chapman sued her employer when her job was eliminated, claiming disability discrimination under the Americans with Disabilities Act. At the litigation’s outset, Chapman served the employer with discovery requests, but the requests did not indicate in what form responsive documents should be produced. The employer provided responsive documents in paper form, and Chapman did not initially object.
Chapman, however, hired new counsel, who demanded re-production all of the previously-produced paper records, this time in native electronic format. Although the employer ended up re-producing almost all relevant documents, Chapman took issue with the time and negotiations required. Chapman’s attorneys filed a motion for sanctions accusing the employer of “gamesmanship, bad faith, and sharp practices,” mainly because of the initial refusal to re-produce all previously-produced documents.
United States Magistrate Judge Jeffrey Cole, however, denied that motion, holding that parties seeking native format production must explicitly demand that in their discovery requests. Because Chapman did not originally demand native format production (or even object to the paper production), she waived her right to native format production. According to Judge Cole, that the employer ultimately agreed to re-produce some documents in native format, even though it was not obligated to, “is the occasion not for sanctions but for some measure of commendation.”
As the Chapman case demonstrates, if a party wants access to native format documents, it must specify as much in its discovery requests. Otherwise, the responding party is under no obligation to produce documents in native format and will not be subject to sanctions for refusing to provide a second, native-format production.