Rhode Island Federal District Court Addresses Whether Documents Must Be Produced in Native Format

| Oct 24, 2016 | Firm News

In a wide-ranging memorandum and order on several discovery motions, Magistrate Judge Sullivan addressed, inter alia, whether parties in a commercial dispute must produce documents in their “native” electronic format in addition to the PDF form in which they were originally produced. Wai Feng Trading Co. v. Quick Fitting, Inc., C.A. Nos. 13-33, 13-56, 2016 WL 4184014 (D.R.I. June 14, 2016). Strauss Factor represents the so-called “Wai Feng Parties” in this case.

The context of the Court’s ruling was the Wai Feng Parties’ belated production of about 60 documents (of over 3000 they collectively produced during the litigation). The documents were produced as Bates-stamped searchable PDFs, as were all the prior documents (when not produced in “hard” copy). Quick Fitting sought to compel the production of the documents in native electronic format with all metadata intact. It argued that its position was supported by the so-called “Sedona Principles” as set forth in Sedona Principles: Second Edition, Best Practices, Recommendations & Principles for Addressing Electronic Document Production (2007). Quick Fitting said the production in native format with metadata was necessary to support its claim that the Wai Feng Parties had engaged in a conspiracy with a non-party to steal Quick Fitting’s trade secrets.

The Wai Feng Parties argued that it was quite possible that any metadata showing who had created the documents might have been altered already by the course of time, as well as the Parties’ production and conversion of them to PDF. The Wai Feng Parties pointed out that Local Rule 34 requires that any document production over fifty pages be Bates-stamped and that that documents in native format could not be Bates-stamped. Essentially, the Local Rule requires production in either “hard” or a PDF format.

Judge Sullivan noted that Quick Fitting had not specified production in electronic format in its discovery nor had it addressed the issue at the Rule 16 conference. She said the Federal Rules of Civil Procedure state that “a party need not produce the same electronically stored information in more than one form.” F.R.Civ.P. 34(b)(2)(E)(iii). Judge Sullivan said the Sedona Principles were consistent with the Rules because they provide that production in a second format should be ordered only if the request is based on a “substantial need or justification” and that in such an event the Court should deploy cost-shifting to reduce the burden on the producing party.

Judge Sullivan found only two of the sixty documents might provide metadata to support Quick Fitting’s theory. She ruled that Quick Fitting, at its own expense, must engage an electronic vendor capable of retrieving a document in native format without interfering with whatever metadata might remain and that the Wai Feng parties would cooperate with the vendor in retrieving those two documents in native format.

The lesson here is that litigants in federal court should specifically request production of documents in native format at the Rule 16 conference or in their discovery (and be prepared to reciprocate). In Rhode Island, they should also how native-format production complies with the Local Rule requiring Bates-stamping of large document productions.

Wai Feng Trading Co. v. Quick Fitting, Inc., C.A. Nos. 13-33, 13-56, 2016 WL 4184014 (D.R.I. June 14, 2016)

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