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Ninth Circuit Court Compels Defendant to Re-Produce Electronically Stored Information in Format Requested by Plaintiffs

A California federal trial court has granted the plaintiffs’ motion to compel re-production of electronically stored information (“ESI”) in native format with all associated metadata, while also granting plaintiffs their “reasonable expenses” incurred, including attorneys’ fees, in making their motion.  In Morgan Hill Concerned Parents Ass’n v. Cal. Dep’t of Educ., No. 2:11-cv-3471 KJM AC (E.D. Cal. Feb. 1, 2017), the court rejected the defendant’s argument that a requesting party cannot demand production in a specific format that would ease the requesting party’s review process, finding that such an argument runs directly counter to Rule 34(b)(1)(C) of the Federal Rules of Civil Procedure.  The court held that requesting production in a specific format to facilitate the “ease of review” is exactly what is contemplated by the rules.

In reaching its decision, the court emphasized that the producing party cannot ignore a request to produce ESI in a specific format, even if the production is in a “usable form” and paired with “essential metadata.” Rather, the court explained that Rule 34(b)2)(E)(ii) only permits production in a “reasonably usable form” if the request does not specify the form for production.  Because the plaintiff did specify the form of production in this case, the court held that there was no basis for defendant to ignore this request.

The court also rejected the defendant’s argument that requiring it to re-produce documents in native format would be an undue burden, ruling that “this is a problem of [defendant’s] making.  Had the defendant complied with plaintiffs’ requested format for production in the first instance, it would not have had to produce the documents twice.  Alternatively, the court noted, defendant could have timely objected to the production format requested by plaintiff and proposed to produce the ESI in its own chosen format.  Even if plaintiffs were likely to deny this proposal, it would have allowed the parties to meet and confer on what format would be used and what metadata would be produced prior to the initial production.  If the meet and confer proved futile, the issue could have been briefed to the court before production, as opposed to after.

Finally, the court also rejected the defendant’s argument that production of the documents in native format would infringe on the attorney-client privilege and work product doctrine.  The court held that defendant’s privilege objection was invalid because defendant had not produced a privilege log that complied with the federal rules.  Here, the defendant produced multiple versions of privilege logs, but none of them provided sufficient information for plaintiffs to determine the basis of defendant’s claimed privilege.  For example, the privilege logs did not indicate the subject of the communication or whether an attorney was included on the communication.  The court stopped just short, however, of finding that the defendant had permanently waived its assertion of the attorney-client privilege, granting the defendant 30 days to either produce all of the documents in question or produce adequate privilege logs, justifying the exclusion of specific documents from the native format production.

The takeaway from this case is that requesting parties have the right to specify the format of production of ESI.  If production of the documents in the requested format poses an undue burden for the producing party, it is the producing party’s burden to object to the specified format at the time it responds to the original request for production of documents and propose an alternative format for the production.  Failure to make a timely objection and counterproposal can result in the producing party waiving any such objections and being compelled to produce documents in the format specified by the requesting party, regardless of the burden to the producing party or whether the documents have already been produced in an alternate format.

Jackson Lewis P.C. © 2020


About this Author

Adam S. Gross, Jackson Lewis, employment litigation lawyer, administrative agencies attorney

Adam Gross is an Associate in the New York City, New York, office of Jackson Lewis P.C. He represents management in employment litigation in state and federal court and before administrative agencies.

Mr. Gross handles wage and hour class and collective actions, employment discrimination claims, harassment, retaliation and wrongful discharge claims.

While attending law school, Mr. Gross was a member of the Moot Court Team and contributed to the Urban Law Journal.


Brett M. Anders is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He exclusively represents management in workplace law, including counseling and litigation.

Mr. Anders routinely advises clients regarding day-to-day employment issues, such as employee discipline and discharge, disability management issues, reductions-in-force and restrictive covenants. He also regularly conducts training programs for employers on a variety of employment-related topics, such as performance management, sexual harassment awareness and disability management.