Friday, we covered a case regarding a form of production dispute.  Here’s another one, with a couple of other discovery disputes to boot.

In U.S. v. Town of Irmo, S.C., No. 3:18-cv-03106-JMC (D.S.C. Mar. 3, 2020), South Carolina District Judge J. Michelle Childs granted in part plaintiff United States of America’s Motion to Compel, ordering defendant Town of Irmo, South Carolina to respond to several requests for production and interrogatories and produce corresponding evidence in native format.  Judge Childs, after concluding that the defendant’s privilege log was “inadequate”, also ordered the defendant to “promptly” supply a privilege log to the plaintiff that conformed to Rule 26(b)(5).

Case Background

In this case involving an alleged violation of the Fair Housing Act of 1988 (“FHA”) by the defendant, the plaintiff filed a Motion to Compel and Motion to Extend the Scheduling Order on June 21, 2019, seeking discovery documents from the defendant.  The plaintiff claimed that the defendant had (1) “provided evasive or incomplete responses”; (2) “withheld discovery responses based on unsupported, generalized objections”; (3) “asserted inapplicable privileges and withheld responsive information without providing a privilege log”; and (4) “produced electronically stored information [ (“ESI”) ] in non-native format and failed to indicate which documents were responsive to each discovery request.”

Judge’s Ruling

Judge Childs chose to address issues associated with production in native format, the scope of discovery and privilege log, as follows:

Native Format

The defendant offered two explanations for refusing to provide discovery to the plaintiff in native format: (1) “[t]he Plaintiff is attempting to put [Irmo], which is a small town with no internal IT support, to unnecessary time and expense for no practical reason”; and (2) that “Plaintiff has failed to demonstrate any need to obtain…emails in a ‘native format.’ ”  Judge Childs found those reasons to be “unpersuasive”, stating:

“[D]espite Plaintiff’s specific request, Irmo failed to provide ESI in its native format, did not object to providing its discoverable ESI in native format, nor claim that producing the ESI in native format was not feasible…Instead, Irmo (1) transferred the ESI onto a Compact Disc (‘CD’), which seems to indicate the existence of an electronic record keeping system that maintains the ESI in its native format; and (2) furnished a 337-page PDF…It is odd that ‘a small town without IT support’ would devote a substantial effort to convert ESI, e.g., a Microsoft Word document, into an arguably less-desirable format that clearly disregards Plaintiffs request. This process is likely far more challenging and time consuming for Irmo than simply supplying the ESI ‘as is.’…Indeed, the court is puzzled by Irmo’s assertion that providing a document in its native format amounts to an impractical waste of time and money…On the contrary, as Plaintiff correctly points out, ESI ‘in which [it is] ordinarily created, viewed, modified and maintained’ is the most practical format to evaluate.”

Scope of Production

The defendant consistently used the following language in objecting to requests for production and interrogatories: “unduly vague, overly burdensome, overbroad in that it is not limited in scope, and not reasonably proportional to the needs of this case”.  Judge Childs responded by stating: “Here, Plaintiff contends that the information it seeks is within the scope of discovery because ‘the actions taken by [Irmo], independent of those involving Patricia Witt, may be relevant to the claims and possible defenses in this litigation.’ The court agrees. Irmo’s objections to Plaintiff’s Motion to Compel are merely conclusory boilerplate objections that lack a precise basis for the court to rule in Irmo’s favor.”  However, Judge Childs did rule that the defendant’s response to Interrogatory No. 13, which did not contain a boilerplate response was “sufficient”.

Privilege Log

With regard to the defendant’s privilege log, Judge Childs, in ordering the defendant to “promptly” supply a privilege log to the plaintiff that conformed to Rule 26(b)(5), stated: “Upon review of the privilege log, the court finds that it is too vague to discern whether a valid claim of attorney-client privilege exists nor allows the court and Plaintiff to test the applicability of the privilege as to each document withheld. Specifically, Irmo failed to include legislative privilege or quasi-judicial privilege in its privilege log and instead included, insufficient descriptions regarding a transfer of documents between Town Council members.”

As a result, Judge Childs granted in part the plaintiff’s Motion to Compel, ordering the defendant to respond to several requests for production and interrogatories and produce corresponding evidence in native format, as well as addressing deficiencies in its privilege log.

So, what do you think?  Why do so many parties continue to take native format ESI and take several steps to convert it for production?  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.

Happy belated Mother’s Day to all the moms out there, including my lovely wife (and a great mom), Paige!

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