Fleissig, Audrey G., United States District Judge
Trial court denied plaintiffs' motion to compel the production of documents in pipe delimited text format or "Excel" format where documents had already been produced in searchable pdf and the parties' agreed upon discovery plan provided that "good cause" must be demonstrated and included examples where data was not reasonably useable.
Plaintiffs, former call center employees, brought class action under the Fair Labor Standards Act seeking back wages for the time it took them to access computer applications when beginning to work and to close down computer applications at the end of work. The court granted conditional class certification, and the parties entered into a scheduling order, including a discovery plan that provided:
The parties will preserve and disclose electronically-stored information (“ESI”), pursuant to the requirements [of] Fed. R. Civ. P. 26.. To the extent there is any discovery concerning ESI, the parties may disclose/produce ESI in hardcopy or static form (e.g. .pdf or .TIF), thereby allowing documents produced to be indexed and individually marked through “Bates” stamping. Consistent with the Federal Rule of Civil Procedure 34(b)(iii), the parties presumptively need not produce the same ESI in more than one form; however, after the production of ESI in a hardcopy or static form, the parties may request disclosure of metadata or native files for particular documents where good cause has been demonstrated, e.g. where the original creation date of a document is at issue and disputed, or when a static image is not reasonably usable, e.g. when a .pdf image is unable to capture/display all column/information contained in a spreadsheet such as an Excel file.
Plaintiffs, having received prior productions as searchable pdfs without objecting, including time records for the original 13 plaintiffs (the class has grown to 800) then sent new RFP's requesting time clock records for all plaintiffs during the class period. A month after issuing the requests, plaintiff's counsel asked defendant's counsel to produce the requested documents in "computer readable format". Defendant produced the documents as searchable pdfs.
Plaintiff then moved to compel production of the time records in excel format, arguing that the pdf format did not allow them to sort and group the time records and required them to manually re-enter records to determine the amounts of overtime for which they were not paid. Defendant made four arguments in response:
- Plaintiffs RFP did not specify the format in which documents should be produced and that FRCP 34(b)(2)(E)(ii) permits them to produce pdf searchable files,
- Defendant previously produced files in this format, which is the default format for its system, without objection,
- PDF is a reasonably useable format, and that it need not produce them in another format under Rule 34(b)(2)(E), and
- Defendant does not maintain the time clock records in excel format and preparing them in that way would require 40-50 hours of manual data entry and cost approximately $1500.
Defendant also requested that if it is required to re-produce the records in this format, that plaintiff bear that cost. Plaintiff argued that the discovery plan in this case contemplates this exact type of situation and allowed them to request data again in its native format.
The court found that searchable pdfs are generally a reasonably useable form under Rule 34, and that the discovery plan was not applicable here. The plan allowed for a party to re-request a new format "where good cause has been demonstrated," but listed several examples, all of which were situations in which data was unusable. According to the court:
These examples are of situations in which certain data or metadata is not adequately captured by a PDF file, a circumstance absent in this case. Plaintiffs are not disputing the veracity of the time records, nor do they allege that there is information truncated or lost in a PDF that would be available in an Excel format. Rather, Plaintiffs want to be able to sort and categorize the data Defendant provided with greater ease than they are able to currently. Such difficulties would have been a good reason for Plaintiffs to specify a particular format in their request for production, but are not sufficient “good cause” to force Defendant to reformat and produce data which it has already provided. [citations omitted.] This is particularly true where, as here, Plaintiffs previously accepted the very same type of records from Defendant in searchable PDF format without objection. Should Plaintiffs wish to obtain the data in a computer readable format, they must reimburse Defendant for its reasonable costs.
v.
CHARTER COMMUNICATIONS, LLC, Defendant
Counsel
Mark A. Potashnick, Weinhaus and Potashnick, St. Louis, MO, Russell C. Riggan, Samuel W. Moore, Riggan Law Firm, LLC, Kirkwood, MO, for Plaintiffs.Nald P. Stewart, pro se.
Clifford A. Godiner, Laura M. Jordan, Roy N. Williams, Tabitha G. Davisson, Thompson Coburn, LLP, St. Louis, MO, for Defendant.
MEMORANDUM AND ORDER
The parties will preserve and disclose electronically-stored information (“ESI”), pursuant to the requirements Fed.R.Civ.P. 26. To the extent there is any discovery concerning ESI, the parties may disclose/produce ESI in hardcopy or static form (e.g. .pdf or .TIF), thereby allowing documents produced to be indexed and individually marked through “Bates” stamping. Consistent with the Federal Rule of Civil Procedure 34(b)(iii), the parties presumptively need not produce the same ESI in more than one form; however, after the production of ESI in a hardcopy or static form, the parties may request disclosure of metadata or native files for particular documents where good cause has been demonstrated, e.g. where the original creation date of a document is at issue and disputed, or when a static image is not reasonably usable, e.g. when a .pdf image is unable to capture/display all column/information contained in a spreadsheet such as an Excel file.