Getting by with a little help from my friends (aka, mom-in-law)! Shark week, er, eDiscovery Case Week, continues today! In Energy Mgmt. Collab., LLC v. Darwin Tech LLC, No.: 8:22-cv-00952 JWH (ADS) (C.D. Cal. Apr. 25, 2024), California Magistrate Judge Autumn D. Spaeth ruling that Defendant’s position was “uncompelling”, granted Plaintiff’s motion to compel Defendant to produce pure native technical files without running them through an eDiscovery software platform, among other rulings.

Case Background

In this case involving claims of breach of contract, fraud, conversion, and unjust enrichment, Plaintiff asked the Court to compel Defendant to produce documents (or further written responses) in response to several Requests for Production (RFPs). As part of those requests, Plaintiff asked the Court to compel Defendant to produce pure native files of all documents it previously produced in unreadable/unusable form. Plaintiff also asked for $109,401.00 in sanctions against Defendant, whereas Defendant sought $22,929.50 in sanctions against Plaintiff.

Regarding the pure native technical files, Plaintiff argued Defendant failed to produce the documents “in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms”, per FRCP Rule 34(b)(2)(E)(ii). Plaintiff explained that technical files such as “.s37” or “.hex” files (as opposed to common files such as Word, PDF, or Excel) can only be opened using specific technical software programs; eDiscovery programs like Relativity are not equipped to open or present such technical files. Therefore, they are typically produced in “pure native form,” meaning not through eDiscovery programs such as Relativity. This is because the individual files are part of groups of files (called “projects”) that need to be opened simultaneously using certain software programs, and if they are processed through Relativity, the organizational structure is lost and the files cannot be opened or viewed in the appropriate software programs. Despite knowing that these files cannot be opened through Relativity, Defendant processed and produced these files through Relativity.

Defendant argued that Plaintiff was harassing it and imposing an undue burden because it already produced these technical files as it kept them in the ordinary course of business, arguing that its production was consistent with Rule 34 because it produced these documents in native format, provided the metadata that permitted Plaintiff to recreate the folder structure of the production, and identified the software needed to view those file types. Defendant also argued that Plaintiff was demanding that Defendant make these documents viewable in Relativity and, thus, alter how they were kept in the ordinary course. Finally, Defendant argued that Plaintiff’s supporting attorney declarations lacked foundation because neither declarant had expertise in evaluating source code or other technical files, and Plaintiff had not retained an expert to help it review Defendant’s production.

Judge’s Ruling

Judge Spaeth opened her discussion of the issue by stating: “DT’s position is uncompelling. There is no question that these technical files are relevant. That being so, Rule 34(b)(2)(E)(ii) required DT to produce the technical files in a form in which they were ordinarily maintained or in a reasonably usable form, because the RFPs do not specify a form for producing electronically stored information…EMC is seeking the technical files in pure native format—that is, without processing them through Relativity in order to maintain their hierarchical structure. DT does not contest EMC’s assertion that technical files are typically produced in pure native format. DT likewise does not contest EMC’s assertion that the organizational structure of these technical files was stripped or changed by DT processing and producing them through Relativity. Indeed, testimony from DT’s own e-discovery specialist indicates the organizational structure for these technical files has been altered.”

Granting Plaintiff’s motion to compel Defendant to produce pure native technical files, Judge Spaeth added: “Finally, DT fails altogether to address EMC’s assertion that sending the technical files in pure native form would be quick and easy. Rather, DT misconstrues EMC’s request and provides no real explanation for why it refuses to simply provide EMC the pure native technical files. At the Hearing, DT failed to articulate any undue burden. DT’s counsel represented to the Court that DT has already produced pure native technical files. Yet nowhere in the parties’ briefing or evidence does DT attest to counsel’s assertion. DT attests to producing native technical files processed through Relativity and to providing EMC with metadata to allow it to recreate the files’ organizational structure. The Court understands this to mean DT has not produced the technical files in pure native form but that doing so would be of little burden.”

Judge Spaeth also granted Plaintiff’s motion regarding several other disputes, including production of unredacted source code, finding that “DT again fails to explain how the stipulated Protective Order in this case is insufficient to mitigate DT’s confidential trade secrets concerns.” And she denied both requests for sanctions: 1) Defendant’s request was denied because “EMC’s Motion was substantially justified”, and 2) Plaintiff’s request was denied because “EMC has not met its burden for the sanctions it requests.”

So, what do you think? Have you ever been involved in a dispute regarding the production of pure native technical files before? Please share any comments you might have or if you’d like to know more about a particular topic.

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