Over the last year, requests and productions of native-format documents have featured regularly in ediscovery cases resolved by the courts. These cases have demonstrated how differently litigants—and judges—view the distinctions between quasi-paper forms of production like PDF or TIFF files and native-format productions. If you’re trying to obtain electronically stored information (ESI) in its native format, these cases offer some helpful guidance.
Recently, in MetLife Investors USA Insurance Co. v. Lindsey, the court granted a motion compelling the plaintiff to produce ESI in its native format. Let’s look at why this case turned out the way it did and see what lessons it offers for how to maximize the odds of receiving production in native format when it really matters.
The Facts of MetLife Investors USA Insurance Co. v. Lindsey
MetLife initiated this case against Steven Lindsey and his former wife’s estate (collectively, “Lindsey”), seeking rescission of Melinda Lindsey’s life insurance policy. It argued that she had obtained that policy through misrepresentations in her application. MetLife Inv’rs. USA Ins. Co. v. Lindsey, No. 2:16-CV-97 (N.D. Ind. Oct. 25, 2018).
(As an aside, this case is juicier than the average rescission where an insurance company claims that an insured misrepresented health information on an application. Here, Melinda Lindsey was shot and killed. Her husband made a claim for her life insurance benefits but didn’t get much of a chance to spend them: he was convicted of her murder and sentenced to 55 years of incarceration. Only after the estate obtained a wrongful-death judgment and sought to claim the policy benefits did MetLife rescind the policy.)
During discovery, MetLife repeatedly “produced documents in non-searchable PDF format.” It asserted that this was the “most usable format” for its information (though how a non-searchable format could be the “most usable format” for anything is a bit of a mystery). Although Lindsey objected to MetLife’s production of PDF rather than native-format files, “MetLife apparently ignored the objections and continued to produce” PDFs.
Lindsey moved to compel production of that information in its native format, the form in which the files were kept in the normal course of business. In this opinion, the court granted that motion.
The Court’s Analysis and Holding
Federal Rule of Civil Procedure 34 establishes litigants’ rights and obligations concerning the form of production for responsive ESI. For better or worse, Rule 34 offers lots of options. For instance, a party must either “produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.” Should a request for documents not state which form of ESI it seeks, the respondent “must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.”
Here, MetLife stated that it “produced images of all relevant documents from its various electronic platforms.” It claimed that “those records that could be obtained in a searchable format” were, in fact, “produced in that format.” MetLife repeatedly referred to the PDF image files as the “most usable” format available, though it admitted that it didn’t keep files in PDF format in the normal course of business.
MetLife also argued that fulfilling Lindsey’s request would be “disproportionate” at this stage. MetLife stated that any “additional data” available in native-format files would be irrelevant and that native-format production would be duplicative. However, it didn’t explain the details of what a re-production would involve or indicate how costly it would be.
It’s worth noting that while MetLife framed this as a re-production, the court treated this essentially as a production rather than a re-production of evidence, unlike the last case we discussed. Yes, under Rule 34(b)(2)(E)(iii), a producing “party need not produce the same electronically stored information in more than one form.” But, as the court pointed out, “a request to produce documents is not disproportionate or unreasonable simply because some of the material sought has already been produced, particularly when the initial production did not conform to the rules.”
What about that relevance argument? MetLife opined that the “only remaining issue” was “whether it had a duty to investigate the information in [Lindsey’s] policy application” before issuing her a policy. Any additional data obtained through native-format production wouldn’t, in its view, have any effect on that question.
The court saw it differently. Noting that relevance is “construed broadly,” the court found that native-format files might reveal “who [had] accessed the application information,” which “could be relevant to whether that person should have investigated further.”
But MetLife’s argument had yet another problem: its “production was not consistent with what the parties discussed at the beginning of discovery.” The report summarizing their initial discovery planning meeting noted that “all ESI produced electronically will be produced in native format to the extent possible.”
Considering Rule 34, the potential relevance of information obtained through native-format production, and the parties’ agreement, the court granted Lindsey’s motion to compel production of native-format files. It also ordered MetLife to pay the reasonable expenses associated with the motion, including attorneys’ fees.
The court did not, however, order MetLife to produce all metadata associated with the files. Why not? As it pointed out, “metadata must be specifically requested in advance, and [Lindsey] did not do that.” Therefore, while producing native-format files would “inevitably result in the exchange of some metadata,” the court did not require production of additional metadata.
Tips for Obtaining Native-Format Production With Metadata
If you’re trying to get at least a portion of your ediscovery in native format, follow these tips to increase your chances of success.
Determine which file types you must have in native format. You may want to choose your battles; not all file types provide useful additional information in native format. Remember too that you may be asked to produce files in the same format that you request them in, so be reasonable for your own sake.
That said, for some files, reducing them to a quasi-paper format like PDF or TIFF depletes them of much of their functionality. If you’re looking at data from spreadsheets or databases, an image file won’t tell you anything about the data, formulas, or fields underlying the values you see. Producing that data in PDF is essentially the same as printing out a hard copy: helpful, perhaps, for gaining an overview, but useless in assessing the actual information you can see.
And, if you’re looking at website and social media evidence, you really don’t have much of a choice. Native-format files are critical. Screenshots and PDFs don’t capture linked pages, dynamic content such as videos, or contextual information about how conversations or pages are related to one another.
When it matters, insist on native format from the very beginning of your case.
Seek an agreement for native-format production, at least for key file types. Learn from Lindsey, who prevailed here in part because of the written agreement calling for production in native format. Negotiate for native-format production of critical ESI during your Rule 26(f) conference, and be sure to reduce that agreement to writing. That means you need to go into your Rule 26(f) conference prepared to explain why native format is necessary or relevant to interpreting certain types of data. Because too many litigants approach these pre-trial conferences as mere warmups, you may catch your opponent off-guard, but don’t count on it.
Specify that you’re asking for native-format production in each document request where it’s critical. Make sure your document requests close the loop: specifically request production of ESI in its native format, as it was originally created and maintained, with all metadata intact.
If you need additional metadata, specifically request it. As the court pointed out, metadata is separate from native-format production. If metadata is important to your analysis of data, be sure you explicitly request it at the outset.
Educate the court about why native format is important for the evidence you seek. Courts love to remind litigants that they have broad discretion in deciding discovery disputes. And they’re not wrong. Stack the deck in your favor by educating the court about why the form of production matters and what information is lost in a quasi-paper production. Don’t just assume that your judge will understand why native-format production is important to your case; spell it out so you can benefit from the court’s discretion.
When you’re dealing with website or social media evidence, you really can’t make do with PDFs, TIFFs, or other static image capture methods. You need to receive true native-format web archives.
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