In Cody, et al. v. City of St. Louis, No. 4:17-CV-2707 AGF (E.D. Mo. June 16, 2021), Missouri District Judge Audrey G. Fleissig denied the plaintiffs’ motion to compel the defendant’s production format of certain ESI in native format or with metadata, stating “the City produced ESI in the format reflected by the parties’ initial agreement without objection by Plaintiffs, for years”, but did direct the parties to meet and confer on potential production of metadata for a “limited list of particular documents” and “production of any remaining ESI in native format or with accompanying metadata going forward”. Judge Fleissig also denied the plaintiffs motion for sanctions for spoliation and the defendant’s motion to compel discovery responses.
This case was a civil rights action on behalf of the plaintiffs and others similarly situated against the defendant, alleging dangerous, unsanitary, and inhumane conditions in the defendant’s medium security institution (MSI). On February 20, 2018 (three months after the case was filed), the parties filed a joint scheduling plan that included the following language, “The parties have discussed the exchange of ESI and have agreed that the initial production of ESI can be accomplished with PDF files, paper photocopies, or screen prints. Should the need to produce other ESI arise, the parties will confer in an effort to facilitate production in a mutually agreeable format.”
On July 17, 2020, the Court, in response to one of “many” motions to compel discovery and for sanctions by the plaintiffs, ordered that the defendant produce within 45 days certain missing documents that included Department of Health inspection reports, other inspection reports, and maintenance records. The Court further ordered that, for any documents that could not be produced, the City provide an affidavit or sworn declaration by a person with knowledge as to why the documents could not be produced, including details about the destruction of the document, efforts taken to locate missing documents and a description for any other reasons that the document could not be produced. On August 7, the defendant moved to stay the case, citing a new City Ordinance designed to close the MSI. The plaintiffs agreed to the extension of the Case Management Order deadlines, but not the defendant’s compliance with the July 17 order, which the defendant subsequently filed three affidavits with the court in compliance with that order, which identified documents that had been shredded two weeks after the filing of the case and a defective flash drive.
After the stay was lifted in February of 2021, the plaintiffs (represented by new counsel at this point) reviewed the defendant’s prior document productions and objected to the production format, stating the defendant had produced “thousands of pages of ESI lacking adequate metadata”. The defendant offered to provide ESI in native production format going forward, but the parties couldn’t agree, leading to the motions filed by the plaintiff.
In ruling on the motion to compel regarding production format, Judge Fleissig stated: “Here, the City produced ESI in the format reflected by the parties’ initial agreement without objection by Plaintiffs, for years before this case was stayed. And Plaintiffs do not dispute that they, too, have produced ESI to the City in non-native format and without metadata. If Plaintiffs desired another format, they could and should have discussed their desire with the City, included it in their requests for production, and/or raised the issue with the Court in any of their prior discovery-related motions. Because they did not, the Court will deny their motion. The Court simply will not require that the City reproduce all previously produced ESI in a different format.” But, Judge Fleissig also directed the parties to meet and confer on potential production of metadata for a “limited list of particular documents” and “production of any remaining ESI in native format or with accompanying metadata going forward”.
As for the plaintiffs’ motion for sanctions, Judge Fleissig stated: “Plaintiffs have shown neither prejudice nor an intent to suppress the truth. The shredded Chief of Security records were undisputedly limited to approximately three weeks’ worth of potentially relevant documents from the very beginning of the parties’ agreed-upon discovery timeframe. There is no reason to believe that such documents would be more than marginally important to the named Plaintiffs’ claims… The same is true with respect to the other categories of documents allegedly destroyed by the City… Nor have Plaintiffs shown that the City acted in bad faith or with intent to suppress the truth. At worst, Plaintiffs’ motion contends that there are gaps in the City’s production, some of which resulted from the City’s failure to more promptly implement a litigation hold and others from events outside of the City’s control.”
Judge Fleissig also denied the defendant’s motion to compel “without prejudice, pursuant to Local Rule 37-3.04(A), which states that the Court will not consider any motion related to discovery and disclosure unless the motion contains a statement that movant’s counsel has conferred in person or by telephone with the opposing counsel in good faith or has made reasonable efforts to do so, but that after sincere efforts to resolve their dispute, counsel are unable to reach an accord.”
So, what do you think? What should new counsel do if they object to a party’s previous production format? 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, an Affinity partner of eDiscovery Today. Check out Kelly Twigger’s recap of the case here!
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