On November 13, 2012, the National Highway Traffic Safety Administration (“NHTSA”) issued findings, conclusions, and an order directing Snyder Computer Systems, Inc. d/b/a Wildfire Motors' (“Wildfire”) to recall MY 2009 WF650-C, a three-wheeled motor vehicle. Following that decision, litigation was initiated by both Wildfire and the Government regarding, inter alia, the validity of NHTSA's November 13, 2012 Order. Wildfire asked the Court to stay NHTSA's Order directing it to initiate a recall and to grant it summary judgment by vacating the Order. (ECF Nos. 11, 24.) The Government too asked for summary judgment affirming NHTSA's Order. (ECF No. 15.)

On March 31, 2014, this Court issued an Opinion and Order in which it, inter alia, denied as moot Wildfire's Motion to Stay the Administrative Order, denied Wildfire's Motion for Summary Judgment, and granted the Government's Motion for Summary Judgment Affirming the Agency's Order. (ECF No. 29.) In that decision, the Court ordered Wildfire “to comply with th[e NHTSA] Order immediately.” Id. at 32.

Wildfire did not recall the MY 2009 WF650-C. The Government filed a Motion for an Order to Show Cause Why Wildfire Motors and Douglas D. Snyder Should Not Be Held in Civil Contempt of the Court's Order Dated March 31, 2014, and to Assess Civil Penalties Under the Safety Act (“Motion for Contempt and Civil Penalties”). (ECF No. 41.) Wildfire requested oral argument on the Government's motion, which this Court granted and set the motion for a hearing. (ECF No. 50.) In preparation for the hearing the Court ordered Wildfire to produce certain documents. (ECF No. 55.)

Wildfire has also filed a motion directed at the imposition of civil penalties (“Motion to Alter Judgment and Stay Penalties”). (ECF No. 32.) In that motion, Wildfire requests that the Court alter its decision finding moot Wildfire's Motion to Stay the Administrative Order. Wildfire argues that the motion was not mooted by the Court's decision to affirm NHTSA's Order because there were daily penalties accruing during the time period Wildfire appealed NHTSA's decision to this Court. That motion is fully at issue. (ECF Nos. 35, 36.)

*2 In the Government's Motion for Discovery, it contends that Wildfire failed to provide all of the discovery the Court had ordered it to produce in order for the parties to prepare for the hearing on the Government's Motion for Contempt and Civil Penalties. The documents at issue fall into two categories: Bank records and shareholder meeting minutes in native form.

The Government lists the numerous bank records Wildfire allegedly failed to produce, and indicates that “[g]iven the missing detail in the banking information Wildfire provided, the United States is issuing subpoenas to obtain information about Wildfire's accounts directly from Huntington, WesBanco, Chase, PNC Bank, and The Peoples National Bank of Mt. Pleasant, OH.” (Govt's Mot. for Discovery at 3.) Wildfire responds that it has “already produced all documents in its possession to the Government as previously ordered by the Court. To the extent the Government requires additional documents, its subpoenas to Wildfire's banks should provide more than sufficient documentation.” (Wildfire's Mem. in Opp. at 5.) In reply, the Government contends that Wildfire misinterprets its obligations to provide the documents. This Court agrees.

The Federal Rules of Civil Procedure require a party to produce documents in its “possession, custody, or control.” Fed. R. Civ. P. 34(a)(1). “Federal courts ‘have consistently held that documents are deemed to be within the ‘possession, custody or control’ for purposes of Rule 34 if the party has actual possession, custody or control, or has the legal right to obtain the documents on demand.' ” Craig v. Bridges Bros. Trucking LLC, No. 2:12-CV-954, 2014 WL 3809786, at *4 (S.D. Ohio Aug. 1, 2014) (quoting In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir. 1995)). Thus, to meet its discovery obligations, Wildfire is required to produce all documents it has in its physical custody and all documents it has the legal right to obtain, such as the banking records that are in the banks' physical possession. The Court notes, however, that because the Government has sought the banking records from the banks, it is unnecessary at this point to order Wildfire to produce them. However, because of the additional time necessary to obtain the records, the Court is inclined to permit additional time to complete the discovery as set forth below.

The Government requests that the Court order Wildfire to produce its “Waiver of Notice of the Annual Meeting of the Shareholders” and “Minutes of the Annual Meeting of Shareholders” for the years 2009 to 2014 ... in native form with metadata on portable media.” (Govt's Mot. for Discovery at 4.) The Government utilizes the term “native form” to indicate the format of an electronically created document. The Government argues that “producing the native document on CD or thumb drive—will allow the United States and the Court to see relevant information, such as the author of the electronic document and when it was created.” Id. Wildfire opposes the Government's request because “[t]he native form of the documents is paper, as they were kept in the corporate record book” and “Wildfire has not located any computer with these files.” (Wildfire's Mem. in Opp. at 5.) Wildfire further explains:

*3 Id.

The Government replies that the native form of the shareholder documents is not paper, that the documents in their native form are relevant, and that Wildfire has not submitted sufficient evidence to support its contention that it does not possess the documents. The Government's arguments are well taken.

Because the documents were created on a computer, the United States is correct that their “native form” is not paper but rather an electronic file of some sort. Pursuant to Rule 34(b)(1)(C), a requesting party is entitled to specify the form or forms in which electronically stored information is to be produced. In re Porsche Cars N. Am., Inc. Plastic Coolant Tubes Products Liab. Litig., 279 F.R.D. 447, 449 (S.D. Ohio 2012) (“Under the Rule, a requesting party may specify a form of production and request metadata.”). Id. (citation omitted). “Several courts have held that the burden rests with the objecting party to show undue hardship or expense.” Id. (citations omitted). Additionally, many courts differentiate between requests made in an initial document request and those made after a form of the document has already been produced. Id. (citations omitted). This Court has expressed a preference for the production of electronically stored information in its native form. Id. (citing Superior Production P'ship., d/b/a PBSI v. Gordon Auto Body Parts Co., Ltd., No. 2:06-cv-0916, 2008 WL 5111184, at *1, 2008 U.S. Dist. LEXIS 97535, at *3 (S.D. Ohio Dec. 2, 2008)) (noting that one of the benefits of having documents produced in native form is that the receiving party can view any metadata that might be embedded in the electronic document but not visible on the hard copy).

The Government is also correct that the shareholder documents in their electronic form would provide relevant information such as the file creation date, date of last modification, date of last data access, and date of last metadata modification. Therefore, Wildfire must either produce the shareholder documents in their native form or it must provide affidavit testimony attesting to who created the documents, when and where the documents were created, and what steps Wildfire has taken to locate the electronically stored files. Wildfire must provide the discovery or affidavit to the Government within ten (10) days of the date of this Opinion and Order.

Based on the foregoing, the Court GRANTS the Government's Motion for Discovery in accordance with this Opinion and Order. (ECF No. 51 in Case No. 2:13-cv-311.) The Court VACATES the November 14, 2014 hearing on the Government's Motion for Contempt and Civil Penalties and RESCHEDULES it for December 2, 2014 at 10:00 a.m. At the hearing, the parties should be prepared to address the Government's Motion for Contempt and Civil Penalties (ECF No. 41) and Wildfire's Motion to Alter Judgment and Stay Penalties (ECF No. 32).

IT IS SO ORDERED.