In Lundine v. Gates Corp., No. 18-1235-EFM (D. Kan. Mar. 30, 2020), Kansas Magistrate Judge James P. O’Hara, depicting the situation as a “classic case of what happens when lawyers (even good, experienced lawyers such as those involved here) don’t spend the requisite time on the front end of a case nailing down how discovery of ESI will be handled”, denied the plaintiff’s motion to compel production of data in Excel or native format, as well as the request for plaintiff’s experts to retrieve the data under defendant’s supervision.
In this conditionally certified collective action for overtime pay under the Fair Labor Standards Act, the plaintiff, on behalf of the class, filed a motion to compel the defendant to produce electronically stored information (“ESI”) of the class-member pay data in Excel format or native format, or to allow her experts access to the defendant’s payroll data to download the data themselves. The defendant opposed the motion, asserting it had adequately responded by producing the data in PDF format, which it asserted was permitted under the scheduling order.
The scheduling order filed on November 19, 2018 by the undersigned, stated, among other things that “[t]he parties will work with one another to have any data requests produced in an electronic format that is workable to the receiving party.” However, as Judge O’Hara stated: “Unfortunately, at least for plaintiff as it turns out, it seems that the parties evidently chose not to heed the undersigned’s suggestion about conferring further and then filing a more detailed ESI protocol after the scheduling conference. Plaintiff’s motion presents a classic case of what happens when lawyers (even good, experienced lawyers such as those involved here) don’t spend the requisite time on the front end of a case nailing down how discovery of ESI will be handled.”
Judge O’Hara also cited Fed. R. Civ. P. 34, which states: “[i]f a request for electronically stored information does not specify the form or forms of production, a responding party must produce the information in a form or forms in which it is ordinarily maintained, or in a form or forms that are reasonably usable.” Further, “a party need not produce the same electronically stored information in more than one form.” When there is a motion to compel ESI discovery, “the party from whom discovery is sought must show that information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery if the requesting party shows good cause.”
Stating: “Defendant has provided sufficient detail and explanation of the burden in an affidavit, noting re-production would take an additional 25 hours of employee time and at least $2,500 in attorneys’ fees”, Judge O’Hara ruled:
“Defendant fully complied with plaintiff’s request. Absent an agreement in the scheduling order, the format is within the responding party’s discretion. Here, neither party disputes that defendant produced the information in the form in which it is ordinarily maintained. Additionally, because defendant ordinarily maintains this data in PDF format, this is its native format.”
Judge O’Hara also stated: “Plaintiff has failed to show that the data is not readily accessible in PDF format; rather, she simply argues it is not in her currently preferred format. This of course is insufficient for the court to compel defendant to re-produce already accessible data”.
Judge O’Hara also rejected the plaintiff’s request to allow her data experts to be granted access to defendant’s timekeeping system, with supervision, to download the data at issue in Excel format, stating: “When considering the nature of the timekeeping software, defendant’s right to withhold privileged information, and the added costs of re-producing information already submitted to plaintiff, it would unnecessarily burden defendant to allow plaintiff’s expert access to defendant’s timekeeping software.”
In denying the plaintiff’s motion, Judge O’Hara also stated: “The court notes this dispute could have been avoided altogether had the parties adequately conferred at their Fed. R. Civ. P. 26(f) conference regarding the form for ESI production. In fact, the Guideline 20 of the Guidelines of Discovery of Electronically Stored Information, which is available on the District of Kansas website, specifically advises counsel to agree on the format to be used in production of ESI. Plaintiff argues she did not specify the form because in her experience, data of this type was routinely produced in Excel format. However, this does not relieve plaintiff of her duty to meaningfully confer about the proper format in the case at hand or require defendant re-produce data in a more useful format.”
So, what do you think? Are you routinely addressing form of production in your Rule 26(f) conferences? Please share any comments you might have or if you’d like to know more about a particular topic.
Case opinion link courtesy of eDiscovery Assistant.
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To be frank, it seems as if Plaintiff missed key details at the beginning of discovery. I’ve been there. It can be complicated to manage multiple litigation files, especially if one is in-and-out of hearings or depositions every week. I find it difficult to accept her explanation that she assumed the data would be in Excel format, particularly if she has ever received electronic production in a case; it almost always shows up as PDFs. This was either a lack of experience or a missed detail. Lessons learned all-around.
Thanks, Darius! You know the old saying: When you “assume”, you make an “ass” of “u” and “me”. 😉