Plaintiff Nyle Hooper (“Hooper” or “plaintiff”) seeks an order compelling defendant Lockheed Martin Corporation (“Lockheed Martin” or “defendant”) to produce all electronically stored information (“ESI”) in its native format as well as the metadata for the ESI. (See Joint Stip. at 1, 3 & 7-13). Defendant contends that because “Hooper's requests never asked for native documents or metadata; the parties never agreed to produce it; and Hooper has not specified any particularized need for it[,]” “Lockheed Martin is not obligated to produce electronic documents in more than one form, and Hooper is not entitled to native documents or metadata.” (Id. at 4; see id. at 4-6 & 14-22).

The Federal Rules of Civil Procedure were amended in 2006 to address electronic discovery. See L.H. v. Schwarzenegger, 2008 WL 2073958, at *3 (E.D. Cal. 2008). Rule 34 provides that document requests “may specify the form or forms in which electronically stored information is to be produced.” Fed. R. Civ. P. 34(b)(1)(C). It further provides that when producing “electronically stored information: ... (ii) 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; and [¶] (iii) A party need not produce the same electronically stored information in more than one form.” Fed. R. Civ. P. 34(b)(2)(E).

The relevant instruction accompanying plaintiff's document requests states that if “the information requested is kept in a computerized or electronic format, please produce the information in such format.” (Joint Stip., Attach. G at 3). Assuming the instruction required that the ESI be produced in its native format,[1] see 2006 Adv. Comm. Notes to Fed. R. Civ. P. 34(b) (“The amendment to Rule 34(b) permits the requesting party to designate the form or forms in which it wants electronically stored information produced.”), plaintiff waived his right to obtain the ESI in its native format by agreeing that all documents in this action would be “produce[d] ... in a ‘searchable format loadable into Summation’ ” (“Summation format”). (Joint Stip. at 1; see id. at 5 & Attach. A; Declaration of Mana Elihu (“Elihu Decl.”) at ¶ 3).[2] Between December 2008 and July 2009, defendant produced over 199,000 pages of documents “as searchable and sortable bates-stamped electronic Summation-loadable TIFF files.”[3] (Joint Stip. at 5; Elihu Decl. at ¶ 7; Declaration of Benson Yamasawa (“Yamasawa Decl.”) at ¶ 3).[4] During those approximately eight months – where there were at least three document productions, (see Joint Stip. at 14, 17 & 18; Elihu Decl. at ¶ 6 (indicating that Second and Third RFP requests were issued in February and June 2009, respectively)) – plaintiff did not object to the format of the production. (See Joint Stip. at 18; Elihu Decl. at ¶ 8 (“[M]any of [plaintiff's] Second and Third RFP requests followed-up on and even specifically cited (by bates number) documents that Lockheed Martin had produced in its earlier productions.”); see also, generally, Joint Stip. at 1-2). In short, plaintiff has waived the right to have the ESI produced in a format other than Summation. See Williams v. Sprint/United Mgm't Co., 2006 WL 3691604, at *6 (D. Kan. 2006) (where “Plaintiffs have specifically agreed to the production of transmittal emails in non-native format[, they] have thus waived any right to pursue discovery in native format[ ]”).

*2 Given that “[a] party need not produce the same [ESI] in more than one form[,]” Fed. R. Civ. P. 34(b)(2)(E)(iii), it is not clear as to why plaintiff now wants the ESI produced in its native format despite its agreement to have the documents produced in Summation format. Plaintiff's assertion that he “is entitled to request that they be produced in their original native format[,]” (Joint Stip. at 9), does not change the fact that the parties agreed that the ESI would be produced in Summation format. Cf. Wyeth v. Impax Labs., Inc., 248 F.R.D. 169, 171 (D. Del. 2006) (“Since the parties have never agreed that electronic documents would be produced in any particular format, [plaintiff] complied with its discovery obligation by producing image files.”). Plaintiff does not dispute that producing the ESI in Summation format constitutes production “in a reasonably usable form[.]” Fed. R. Civ. P. 34(b)(2)(E)(ii); (see Joint Stip. at 9) (“There is at present no dispute about the production of Bates-numbered TIFF files[.]”); see also Rahman v. Smith & Wollensky Restaurant Group, Inc., 2009 WL 773344, at *4 (S.D.N.Y. 2009) (“Without specific instructions otherwise, pdf format – a familiar format for electronic files that is easily accessible on most computers-is presumptively a ‘reasonably usable form.’ ”).

To the extent plaintiff seeks re-production or production of the ESI in its native format because he wants the metadata, (see Joint Stip. at 10) (the native documents “contain crucial meta– and embedded data”), the court is unpersuaded. First, a party who wants metadata must make a special request for such data by demonstrating the relevance of the metadata. See Autotech Techs. Ltd. P'ship v. Automationdirect.com, Inc., 248 F.R.D. 556, 559 & 560 (N.D. Ill. 2008) (“Ordinarily, courts will not compel the production of metadata when a party did not make that a part of its request.” “[I]n order to obtain metadata you may need, you should specifically ask for it to begin with [.]”) (internal quotation marks and citation omitted). Here, plaintiff has pointed to nothing in the record to establish that he requested metadata, irrespective of the format, i.e., native or Summation. (See Elihu Decl. at ¶ 3) (“Hooper's counsel suggested that [the parties] produce documents in a searchable format loadable into Summation, ... [but] did not mention or request native documents or metadata[.]”). Further, his request for the metadata at this stage of the proceedings is simply too late. See Autotech Techs. Ltd. P'ship, 248 F.R.D. at 559 (“It seems a little late to ask for metadata after documents responsive to a request have been produced in both paper and electronic format.”).

Second, even assuming plaintiff had requested metadata, he has not explained why the metadata is relevant to the claims or defenses in this case. (See, generally, Joint Stip. at 1-3 & 7-13); see also Autotech Techs. Ltd. P'ship, 248 F.R.D. at 560 (“Absent a special request for metadata (or any reasonable basis to conclude the metadata was relevant to the claims and defenses in the litigation), and a prior order of the court based on a showing of need, ... production of documents [in a PDF or TIFF format that does not include metadata] complies with the ordinary meaning of Rule 34.”). Given that “[m]ost metadata is of limited evidentiary value, and reviewing it can waste litigation resources[,]” Wyeth, 248 F.R.D. at 171, plaintiff's assertion that the native documents “contain crucial meta– and embedded data,” (Joint Stip. at 10), is plainly insufficient. See Williams, 2006 WL 3691604, at *7 (“Plaintiffs have not sufficiently explained why they need the transmittal e-mails in their native format.”).

Defendant seeks an order “that on a going-forward basis, Hooper be required to share the burden of costs associated with retaining a third-party vendor to produce the responsive documents in electronically searchable TIFF format.” (Joint Stip. at 26; see id. at 4-6 & 22-26). Plaintiff contends that “[a]side from the normal obligation of each party to bear the costs of its own production, it is manifestly unreasonable to ask Hooper to pay Lockheed Martin to create redacted less-useful documents.” (Id. at 13).

*3 The record indicates that, despite the parties' agreement to produce the ESI in Summation format, defendant recently produced documents “in a TIFF format that was not ‘searchable’ in Summation.” (Declaration of Joseph A. Black at ¶ 3). Just as the court concluded that it is too late for plaintiff to insist that the ESI be produced in its native format because the parties agreed to production of the ESI in Summation format, defendant cannot refuse to produce the ESI in Summation format on the ground that it now seeks costs-sharing when it never raised that issue during the parties' discussion relating to the format of the ESI production.

In any event, even assuming the costs-sharing issue had not been waived by defendant, the court would still deny the request. First, the responding party generally bears the expense of complying with discovery requests. SeeOppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358, 98 S.Ct. 2380, 2393 (1978) (“the presumption is that the responding party must bear the expense of complying with discovery requests”); accord OpenTV v. Liberate Techs., 219 F.R.D. 474, 476 (N.D. Cal. 2003).

Second, in the context of ESI discovery, “whether production of [such] documents is unduly burdensome or expensive turns primarily on whether it is kept in an accessible or inaccessible format (a distinction that corresponds closely to the expense of production).” Zublake v. UBS Warburg LLC, 217 F.R.D. 308, 318 (S.D.N.Y. 2003) (italics in original); see OpenTV, 219 F.R.D. at 476 (“Shifting the cost of production from the producing party to the requesting party should be considered only when inaccessible data is sought.”). Here, there is no dispute that the requested ESI is kept in an accessible format. (See Joint Stip. at 2 (“Hooper learned that these documents are stored in their native formats in Microsoft Word, Excel, PowerPoint and Acrobat PDF. Additionally, e-mails are stored in Microsoft Outlook or a similar archival system. All of these formats are fully searchable.”), 6 (defendant does not cite inaccessibility as a reason for not producing native documents), 9-10 (“The native format of almost all of the documents that Hooper requested is Microsoft Word, Excel, PowerPoint, Outlook, or Adobe Acrobat PDF and stored in document management or archival system ... or its email system.”) & Attach. I; Yamasawa Decl. at ¶¶ 5-6; seealso, generally, Joint Stip. at 4-6 & 14-22). Thus, it is unnecessary to address the cost-shifting factors set forth in OpenTV.

Further, even assuming it was necessary to address the burden factors, defendant, other than providing argument, (see Joint Stip. at 24-25); Autotech Techs. Ltd. P'ship, 248 F.R.D. at 559 (“But that is all it is – an argument – and ADC does not provide evidence, such as an affidavit to support its version of the production. An uncorroborated statement in a brief doesn't count.”), has not provided any evidence to support its burdensomeness objection, i.e., it has not demonstrated that producing the ESI is unduly burdensome. See Zubulake, 217 F.R.D. at 318 (“cost-shifting should be considered only when electronic discovery imposes an ‘undue burden or expense’ on the responding party”) (italics in original). Finally, if defendant wants to reduce its production costs, it can – as plaintiff desires – produce the subject information in its native format.[5] In short, defendant shall bear the costs of producing documents responsive to plaintiff's requests in Summation format.

*4 This Order is not intended for publication. Nor is it intended to be included or submitted to any online service such as Westlaw or Lexis.

Based on the foregoing, IT IS ORDERED THAT:

1. Plaintiff's Motion to Compel Production of ESI in its Native Format (Document No. 77) is denied.

2. Defendant's Motion for Order Protecting it from Undue Expense (Document No. 82) is denied. No later than December 31, 2009, defendant shall, if it has not already done so, reproduce all the documents it recently produced in another format in Summation format, i.e., into a searchable format loadable into Summation.

3. The parties are hereby advised that, absent a stay of this Order by this court or the District Judge, they must comply with all of its provisions, i.e., the filing of a motion for review of this court's decision is not sufficient to suspend defendant's obligations to comply with the court's order. See Local Rule 72-2.2 (“Regardless of whether a motion for review has been filed, the Magistrate Judge's ruling remains in effect unless the ruling is stayed or modified by the Magistrate Judge or the District Judge.”); Tinsley v. Kemp, 750 F.Supp. 1001, 1013 (W.D. Mo. 1990) (“[B]y refusing to comply with discovery merely because a motion to stay is pending, a party effectively is granting its own motion to stay – even before the court has ruled. Such a phenomenon would reduce a court's orders to useless and senseless formalities.”). A magistrate judge's decisions “should not be considered ineffective, advisory, or nonfinal simply because they may be reviewed by the district court.” Kimbrell v. ADIA, S.A., 834 F.Supp. 1313, 1317 (D. Kan. 1993). “Decisions by a magistrate judge on nondispositive motions are intended to be effective unless overturned by the district judge, just as decisions of a district judge are intended to be effective unless overturned by a circuit court.” Id.

4. The parties are hereby ordered to comply strictly with Local Rule 37 in the event any party believes that it may be necessary to file a discovery motion. The moving party's counsel shall initiate the meet and confer process required by Local Rule 37 by preparing and serving the letter required by Local Rule 37-1. The parties shall conduct all meet and confer sessions in person. See Local Rule 37-1. The opposing party's counsel or, for that matter, any party that receives a letter pursuant to Local Rule 37-1, must make himself or herself available for a meet and confer (as specified in Local Rule 37) within ten (10) calendar (not business) days of the date of the letter. All meet and confer letters must be served by fax and U.S. mail on the day the letter is dated. The Joint Stipulation must include copies of all meet and confer letters as well as a declaration that sets forth, in detail, the entire meet and confer process (i.e., when and where it took place, how long it lasted and the position of each attorney with respect to each disputed discovery request).

5. As part of the meet and confer process, the moving party is required to “specify the terms of the discovery order to be sought.” Local Rule 37-1. Local Rule 37-2.1 implements this requirement by requiring, as part of the Joint Stipulation, that each party “state how it proposed to resolve the dispute over that issue at the conference of counsel.” This must be included in all Joint Stipulations. To the extent a certain number of discovery requests involve the same issue(s), the parties may group those requests under one section heading and set forth their position with respect to those requests.

Dated this 10th day of December, 2009.

As described by plaintiff, “[t]he ‘native’ form of an electronic document is the form in which it is kept in the ordinary course of business, and includes ... the actual text of the document, formatting information, authors, creation dates, modification dates, revisions, routing, and accesses.” (Joint Stip. at 8); (see also Joint Stip., Attach. F, Declaration of Benson Yamasawa at ¶ 7) (“In the litigation support services industry, the term ‘native’ references documents in the original form of the software application in which they were created.”).

The Elihu Decl. is Attachment E to the Joint Stip.

Unlike “native” format, a Tagged Image File Format (“TIFF”) file “is merely an image of the file.” In re Netbank, Inc. Sec. Litig., 259 F.R.D. 656, 681 & n. 21 (N.D. Ga. 2009).

The Yamasawa Decl. is attached to the Joint Stip. at Attachment F.

In an effort to explain why it is necessary to go to the expense of converting the ESI from its native format to the Summation format, defendant contends that “native documents can be altered[,]” “cannot be bates-stamped with a unique numerical identifier for tracking purposes or with confidentiality markers on proprietary documents pursuant to the parties' Confidentiality Agreement[,]” and “would render Lockheed Martin unable to redact the privileged portions of these documents.” (Joint Stip. at 20). Defendant's contentions are unpersuasive. Although defendant suggests a number of hypothetical problems of providing ESI in its native format, it does not assert that these are actual problems in this case. (See, generally, id. at 20-22); see Netbank, 259 F.R.D. at 681 (“Although the Defendants have listed a number of hypothetical problems with providing documents in native format, they have not asserted these to be actual problems arising in the present case.”). Further, there are alternatives to address defendant's concerns. See, e.g., O'Bar v. Lowe's Home Centers, Inc., 2007 WL 1299180, at *5 (W.D.N.C. 2007) (“Because identifying information may not be placed on ESI as easily as bates-stamping paper documents, methods of identifying pages or segments of ESI produced in discovery should be discussed, and, specifically, and without limitation, the following alternatives may be considered by the parties: electronically paginating Native File ESI pursuant to a stipulated agreement that the alteration does not affect admissibility; renaming Native Files using bates-type numbering systems, e.g., ABC0001, ABC0002, ABC0003, with some method of referring to unnumbered ‘pages' within each file; using software that produces ‘hash marks' or ‘hash values' for each Native File; placing pagination on Static Images; or any other practicable method.”) (italics in original); Nova Measuring Instruments Ltd. v. Nanometrics, Inc., 417 F.Supp.2d 1121, 1123 (N.D. Cal. 2006) (“defendant ... shall provide plaintiff ... with the documents specified ..., that such documents shall be produced in their native file format, with original metadata, and that such documents shall be separately identified by Bates numbers”); Am. Family Mut. Ins. Co. v. Gustafson, 2009 WL 641297, at *2 (D. Colo. 2009) (developing a protocol “to minimize the expense to both sides but at the same time assure that discoverable and relevant ESI will be produced while protecting proprietary confidential information that is entirely irrelevant to this litigation and information that is privileged[ ]”). Finally, there is no basis to assume that plaintiff or any of his attorneys will alter the documents produced by defendant.