From Bow Tie Law’s Blog:
In Cenveo Corp. v. Southern Graphic Sys., 2009 U.S. Dist. LEXIS 108623 (D. Minn. Nov. 18, 2009), the Defendant propounded the following discovery request:
“Defendant requests that these documents be produced in native format with all attachments in native format.” Cenveo Corp., at *2.
The Plaintiff produced all electronically stored information as PDF’s. Cenveo Corp., at *2.
The Plaintiff argued (and probably very forcefully) that since the Defendants did not define “native format,” the PDF production complied with Federal Rule of Civil Procedure Rule 34(b)(2)(E)(ii). Cenveo Corp., at *3. This Rule provision states the following:
“If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Fed. R. Civ. P. 34(b)(2)(E)(ii).
The Plaintiff’s argument that the “failure” to define “native format” thus allowed them to produce ESI as PDF’s was not quite the Hindenburg of “form of production” arguments, but it did go down in flames.
