Before the Court is a Motion to Compel (Rec. Doc. No. 32) (“Motion”), filed by plaintiff, Metro Service Group, Inc., (“Metro”). Defendant, Waste Connections Bayou, Inc. (“Waste Connections”), opposes. (Rec. Doc. No. 37). Plaintiff filed a reply. (Rec. Doc. No. 48). The oral hearing on the motion occurred on April 20, 2022, and the Court took the matter under advisement. (Rec. Doc. No. 49). Having considered the arguments of counsel, the briefs, and the applicable law, the motion is denied in part and granted in part as outlined below.

I. BACKGROUND

This is a breach of contract action wherein Metro seeks damages from Waste Connections for the breach, defective and delayed performance, nonperformance, and failure to pay. On November 5, 2008, Waste Connections entered a residual garbage collection contract (“Prime Contract”) with Jefferson Parish for the removal of solid waste from residential units. Id. On June 17, 2009, Waste Connections entered into a subcontract agreement with Metro (“Subcontract”), whereby Metro would pick up and haul waste from designated drop-off centers in Jefferson Parish and deliver the waste to a designated landfill. Id. Waste Connections obtained a ten-year extension on the contract with Jefferson Parish. Id. at 3. Metro alleges that its Subcontract to receive payment for services in the amount of $165.00 per truckload was to increase to $225.00 per truckload upon the start of the ten-year contract extension. Id. The Subcontract also called for payment for fuel charges and adjustments for inflation. Metro alleges that Waste Connections withheld the fuel increase and paid only the original base amount reflected in the Subcontract. Id. at 4.

Metro propounded the instant discovery on August 15, 2021, and through an agreement to extend, received responses on October 21, 2021. (Rec. Doc. No. 32). The deadline for discovery in this matter was April 13, 2022. (Rec. Doc. No. 11, p. 4). The Motion was filed on March 25, 2022, and set for hearing on April 20, 2022, after the discovery deadline. (Rec. Doc. No. 32). No motion for expedited hearing was filed.

II. THE PARTIES' CONTENTIONS

Metro contends that Waste Connections took ordinary email files and deleted all the electronic data rendering the files much more difficult and burdensome for Metro to use efficiently in the litigation. (Rec. Doc. No. 32, p. 1). Thus, Metro moves to compel Waste Connections to produce the files as properly separated individual documents with the ordinary metadata attached or included in appropriate load files. Id. at 2. Additionally, Metro contends that Waste Connections produced 534 pages marked as placeholders for the production of responsive native files but refuses to produce the files. Id. Thus, Metro moves to compel Waste Connections to produce the “placeholder” native files in their native digital format. Id. In its brief, Metro also contended that Waste Connections unilaterally limited the universe of documents it produced by searching only the files that specifically mention the word “Metro,” rather than all relevant information related to the 2014 Prime Contract extension. Id. At the hearing on the matter, however, counsel for Metro stated that it is no longer raising this issue. (See Official Transcript, pp. 17-18). Therefore, the Court will not analyze whether Waste Connections has improperly limited the scope of discovery. Finally, Metro argues that Waste Connections is withholding emails with Jefferson Parish employees on the basis that they are protected from disclosure as privileged legal communications and seeks the production of those emails. Id. at 3. Metro also seeks costs incurred in filing the motion to compel. Id.

Waste Connections contends that Metro never specified the form of production of the ESI and did not request metadata or native emails associated therewith until after Defendant produced the initial tranche of emails that Plaintiff requested “native files with required load files.” (Rec. Doc. No. 37, p. 4). Defendant, in an email to Plaintiff and in its brief, notes that it recovered 14,000 emails and twenty-four gigabytes of data, which counsel then reviewed to narrow to relevant emails, and converted to PDF to review and redact privileged information. Id. (citing Rec. Doc. No. 32-8, p. 5). Defendant contends that it is willing to produce emails with attached data if Plaintiff requests specific emails, but the only alternative is to produce the entirety of the twenty-four-gigabyte file and waive evidentiary privileges since it is unable to redact discrete portions of the electronic native files. Id. at 5. Waste Connections contends that the PDF files are “text searchable,” rendering them reasonably usable. Id.

Defendant further argues that after-the-fact requests for native files or metadata are not sufficient to require reproduction of material previously produced in a reasonably usable format. Id. at 13. Next, Waste Connections argues that the request for native Excel files and communications with Jefferson Parish that are unrelated to Plaintiff are not proportional to the needs of the case. Id. at 16-17. Finally, Waste Connections argues that the emails withheld include its communications with counsel after its first notice of Metro's intention to file a lawsuit, and thus, are rightfully protected by work product privilege. Id. at 19.

In its reply, Metro argues that it was never informed of any issues presented with the ESI requiring conversion and was not allowed input or early objection to the ESI plan. (Rec. Doc. No. 48, p. 2). Metro contends that Waste Connection took the ESI and “converted that information into a minimally useful form that... made the material dramatically more difficult for Metro to use,” in violation of the rules governing discovery. Id. (emphasis in original).

III. STANDARD OF REVIEW

The Federal Rules of Civil Procedure provide that “parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed. R. Civ. Proc. 26(b)(1). In assessing the proportionality of discovery, courts consider “the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. The advisory committee comments to the 2015 amendment to Rule 26 make clear that the parties and the court have a collective responsibility to ensure that discovery is proportional. The party who claims that the information sought is important to resolve the issues in the case should be able “to explain the ways in which the underlying information bears on the issues as that party understands them.” Id. advisory committee's note to 2015 amendment. “The court's responsibility, using all the information provided by the parties, is to consider these and all the other factors in reaching a case-specific determination of the appropriate scope of discovery.” Id.

Federal Rule 26(f) requires that the parties confer as soon as practicable—and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b). Fed. R. Civ. P. 26(f)(1). Among other things, the rule requires that parties develop a discovery plan. Fed. R. Civ. P. 26(f)(2). The discovery plan must state the parties' views and proposals on, inter alia, any issues about disclosure discovery or preservation of electronically stored information, “including the form or forms in which it should be produced.” Fed. R. Civ. P. 26(f)(3)(C) (emphasis added). The rules are in place to prevent the precise situation we have here, where we are fourteen days ahead of trial and witness and exhibit lists have already been submitted.

Moreover, Federal Rule of Civil Procedure 34 provides that responses to requests for production of documents may state an objection to a requested form for producing electronically stored information. “If the responding party objects to a requested form – or if no form was specified in the request – the party must state the form or forms it intends to use.” Fed. R. Civ. P. 34(b)(2)(D) (emphasis added). In addition, Federal Rule of Civil Procedure 34(b)(2)(E) provides that “(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)(ii)-(iii) (emphasis added).

IV. LAW & ANALYSIS

Rule 34(a) allows a party to serve a request to produce electronically stored information, “in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.” Fed. R. Civ. P. 34(a)(1)(A). Rule 34(b)(2)(D), which specifically governs responding to a request for production of electronically stored information, provides that “If the responding party objects to a requested form – or if no form was specified in the request – the party must state the form or forms it intends to use.” Fed. R. Civ. P. 34(b)(2)(D).

The “Instructions” provided in the discovery requests propounded by Plaintiff requests that the documents be produced as they are kept in the usual course of business or organized and labelled to correspond with the categories and the document request. (Rec. Doc. No. 32-7, p. 7). Request for Production No. 2, which is at issue, seeks “any and all electronic and/or written correspondence, excluding privileged attorney-client communications, which relates to and/or references in any way the Contract and Subcontract Agreement.” (Rec. Doc. No. 32-6, p. 19).[1] These instructions do not clearly state a form of production and there is no evidence that Defendant informed Plaintiff that it intended to produce ESI in a PDF format. Thus, Defendant has violated the rules, as Defendant was required to inform Plaintiff of the form it intended to use where none was stipulated.

Rule 26(b)(2)(B) provides that “[a] party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.” If the producing party shows that an undue burden or cost would be required to produce the information as requested, the requesting party must show “good cause” for the production of the requested information in an alternative format. Fed. R. Civ. P. 26(b)(2)(B). Despite the failure to inform Plaintiff of the form it intended to produce the ESI, Defendant has made a strong showing that producing the documents in the manner now requested would have created the undue burden of waiving certain privileges, and that the shift to PDF documents was intended to make it possible to review and redact privileged information from the 14,000 emails and twenty-four gigabytes of data without inadvertently waiving those privileges. (Rec. Doc. No. 37, p. 5). Further, at the hearing, Defendant noted that doing so also enabled it to provide emails with information redacted for privilege while simultaneously including the headers to inform Plaintiff of who sent the communication to whom, when, and regarding what general subject. (Official Transcript, p. 30).

This showing coupled with the failure of Plaintiff to file the instant motion in time to be set before the end of the discovery deadline, detracts from any “good cause” required by Rule 26(b)(2)(B) to require that the production of the requested information in another format.[2] At the hearing, counsel for Plaintiff conceded that he became personally aware of the problem in January of 2022, (Official Transcript, p. 9), yet no objections were raised and no motion was filed at that time. Defendant also noted that co-counsel for Plaintiff reached out in October of 2021 to request a privilege log following the production and again, no objections were raised, and no motion was filed at that time. (Official Transcript, p. 30).

Additionally, the Court believes the PDF documents, while certainly not ideal, did constitute a reasonably usable format. Here, Plaintiff is able to review the documents and they are searchable. Indeed, Plaintiff indicates that they are searchable, just “less searchable.” (See Rec. Doc. No. 32-1, p. 10). Furthermore, in preparing for depositions in March, Plaintiff indicates that it built chronologies of the documents in order to utilize them for that purpose. (Official Transcript, p. 6). This suggests that those documents were reasonably usable. Thus, the Court finds the PDF production is reasonably usable, and will not order the documents be reproduced in another form.

Plaintiff also requests that the documents be produced in native format and with metadata. Again, this request was not made contemporaneously with the discovery request and there is no indication that a discussion of documents in their native format or metadata was discussed in the Rule 26 conference—assuming one was held. The Court is not inclined to require Defendant to produce information that was never specifically requested.

Courts in this district have denied belated requests for metadata. Mr. Mudbug, Inc. v. Bloomin' Brands, Inc., Civ. A. No. 15-5265, 2017 WL 111268, at *3 (E.D. La. Jan. 11, 2017) (finding that to the extent defendant argues that plaintiff should produce metadata, the court disagrees because defendant did not make a request for metadata in its initial request for production of documents). “Ordinarily, courts will not compel the production of metadata when a party did not make that a part of its request.” Id. (quoting Autotech Technologies Ltd. Partnership v. Automationdirect.com, Inc., 248 F.R.D. 556, 559 (N.D. Ill. 2008) (citing Wyeth v. Impax Labs., Inc., 248 F.R.D. 169, 170-72 (D. Del. 2006)). As there was no initial request for metadata, the Court will not now order its production.

Production in native format allows Plaintiff to digitally search the documents and contains metadata that will reflect when the files were changed and by whom. Express Lien, Inc. v. Nat'l Assoc. of Credit Management, Inc., Civ. A. No. 13-3323, 2014 WL 12767814, at *2 (E.D. La. Mar. 20, 2014) (the court granted plaintiff's request for production in native format where this was requested at the time discovery was propounded). Here, Plaintiff failed to originally request production in native format, and Defendant has shown that production in native format would be unduly burdensome. According to Defendant, there are 534 native files representing 103,000 pages of documents. (Rec. Doc. No. 32-8, p. 1). Defendant states that it will produce the native format of any emails Plaintiff specifically asks for, and notes that Plaintiff is capable of identifying those emails because the emails themselves are included in PDF format, just the attachments are omitted. (See Rec. Doc. No. 32-8, p. 5). Defendant, however, declines to produce them in bulk, stating that this is not proportional to the needs of the case, specifically in responding to one request for production. (Rec. Doc. No. 32-8, p. 1).

Regarding production of the native files, the Court agrees that to review 103,000 pages for privilege—particularly at this juncture—without a clear showing by Plaintiff that the production is relevant and proportional to the needs of the case is unwarranted at this late stage in the proceeding. Had Plaintiff raised this issue prior to production, when it received the production in October 2021, or when counsel personally determined the files were not included in January, there would have been ample time to do so. See, e.g., KeyBank Nat'l Assoc. v. Perkins Rowe Associates, LLC, Civ. A. No. 09-497, 2011 WL 13213985, at *4 (M.D. La. Apr. 20, 2011) (“Issues and disputes about the format for production of documents and electronically stored information are supposed to be discussed among counsel before production begins... At least [defendants] should have specified the form of production of electronically stored information in their document production requests... If [defendants] had promptly complained about the format of the plaintiff's document production and complied with their duty under Rule 37(a)(1), either this motion could have been avoided or the dispute could have been resolved before the plaintiff produced nearly 100,000 documents. In these circumstances, the court finds the [defendants] have not only failed in their duty to confer, they have waived their objections to the organization and format of the discovery responses which the plaintiff has produced thus far.”) The Court agrees with Defendant that “[h]ad Plaintiff initially requested native files or metadata, or specified the form in which they wished to receive ESI, it is feasible that Defendant could have prepared its document production in a manner more pleasing to Plaintiff.” (Rec. Doc. No. 37, p. 11). But Plaintiff did not specify a form until four months after Defendant responded to the requests. Additionally, because Plaintiff filed its motion to compel roughly two weeks before the discovery deadline and set it for submission after that date had passed, the Court will not now order Defendant to produce the attached native files.

Plaintiff requests the Court compel Defendant to produce MSG-WCB002401, a series of communications between Clay Richardson of Waste Connections and Katherine Constanza of Jefferson Parish. (Rec. Doc. No. 32-1, p. 21). Metro contends that those two individuals discussed payments to Metro in at least five emails but has redacted them as privileged. Id. Defendant contends that the communications were redacted based on either attorney/client privilege or work product protections, and that the communications were prepared by their lawyers after notice and in anticipation of litigation. (Rec. Doc. No. 37, p. 19). In its brief, Defendant asserts that it would have “possibly un-redacted Ms. Costanza's response to Mr. Richardson,” had it simply been asked prior to the filing of this motion. Id. Despite this assertion, it is not readily apparent that the document has been produced unredacted. At the hearing, Defendant further provided that the emails involved Mr. Richardson asking Ms. Constanza about the contract price increase and why or whether it was given and how it was computed. (Official Transcript, p. 31). Further, Defendant states that in lieu of a privilege log, it provided all emails, utilizing PDF format to redact the substantive information within the emails, but leaving the header including who sent the email to whom, when, and about what.

A party withholding information by claiming privilege or work product “must (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable the other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5) (emphasis added). The use of the word “must” indicates that production of a privilege log, including the detail specified by Rule 26(b)(5)(A)(i) and (ii), is mandatory. The rules do not allow for an “in lieu” production of a privilege log. Indeed, the “privilege log's description of each document and its contents must provide sufficient information to permit courts and other parties to ‘test[ ] the merits of’ the privilege claim.” EEOC v. BDO USA, L.L.P., 876 F.3d 690, 697 (5th Cir. 2017) (citing United States v. El Paso Co., 682 F.2d 530, 541 (5th Cir. 1982); N.L.R.B. v. Interbake Foods, LLC, 637 F.3d 492, 502 (4th Cir. 2011) (“When a party relies on a privilege log to assert these privileges, the log must ‘as to each document ... set[ ] forth specific facts that, if credited, would suffice to establish each element of the privilege or immunity that is claimed.’ ”) (quoting Bowne, Inc. v. AmBase Corp., 150 F.R.D. 465, 474 (S.D.N.Y. 1993))) “A privilege log ... should not only identify the date, the author, and all recipients of each document listed therein, but should also ‘describe the document's subject matter, purpose for its production, and specific explanation of why the document is privileged or immune from discovery.’ ” Peacock v. Merrill, No. 08-01, 2008 WL 687195, at *3 (M.D. La. Mar. 10, 2008). The party asserting privilege bears the burden of proof sufficient to substantiate its claims.

At this time, the discovery at issue was propounded over one year ago. Defendants have made no evidentiary showing in support of its privilege assertion and have also failed to provide the required privilege log. In other contexts in which a privilege log is required, failure to provide the log has resulted in a finding that any privilege has been waived. Nagele v. Electronic Data Sys. Corp., 193 F.R.D. 94, 108 (W.D.N.Y.2000); Bordonaro v. Union Carbide Corp., No. 93-3355, 1995 WL 234545, at *2 (E.D. La. April 20, 1995) (Duval, J.). To date, no privilege log has been provided. The Court concludes that to the extent the Waste Connections sought to assert vague and blanket privileges, the objections are waived because of its failure to comply with the Federal Rule 26. Thus, unredacted copies of MSG-WCB002401, the series of communications between Clay Richardson of Waste Connections and Katherine Constanza of Jefferson Parish must be produced.

V. CONCLUSION

Therefore,

IT IS ORDERED that the Motion to Compel (Rec. Doc. No. 32) is GRANTED IN PART AND DENIED IN PART.

IT IS FURTHER ORDERED that the unredacted copies of MSG-WCB002401, the series of communications between Clay Richardson of Waste Connections and Katherine Constanza of Jefferson Parish, must be produced to Plaintiff by 5:00 p.m. on Friday, June 3, 2022. In all other respects, the motion to compel is DENIED. Any objections to this order must be filed no later than Friday, June 3, 2022 by 5:00 p.m. Any responses to objections must be filed by Monday, June 6, 2022 at 5:00 p.m. to allow time for the district court to review prior to the June 13, 2022 trial date.

New Orleans, Louisiana, this 31st day of May, 2022.

At the hearing, Waste Connections noted that the vast majority of the production at issue was responsive to Request for Production No. 2. They note that while it was not initially organized and labelled to correspond to the categories of the request, after Plaintiff requested this, they updated it to do so. (Official Transcript, pp. 26-27). Therefore, Defendant complied with the “Instructions for Requests for Production of Documents.”

The Court notes that the instant motion is not in compliance with the Court's Scheduling Order because the order requires that all discovery must be complete before April 13, 2022. As this motion was not set for hearing until April 20, 2022, after the discovery deadline, the motion is untimely. See, e.g., Alario v. Offshore Servs. Vessels, LLC, No. CV 09-5440, 2010 WL 11537967, at *2(E.D. La. Dec. 16, 2010) (Roby, M.J.) (denying motion as untimely set for submission three days after the discovery deadline); Days Inn Worldwide, Inc. v. Sonia Investments, 237 F.R.D. 395, 398 (N.D. Tex. 2006) (finding where the Scheduling Order establishes a date for the completion of discovery, parties were required to obtain all necessary discovery and complete discovery by that deadline, which requires a party's motion to be filed sufficiently in advance of the discovery deadline in order to allow it to be heard by a court, and if granted, to allow the compelled discovery to be produced prior to the deadline); Zubarik v. Rubloff Dev. Grp., Inc., No. 3:05-CV-1491-P (BH), 2007 WL 9712168, at *2 (N.D. Tex. June 14, 2007) (same); SJD-CC, LLC v. Marsh USA, Inc., No. CIV.A. 06-09903, 2008 WL 2277858, at *2 (E.D. La. May 29, 2008) (same); Neel v. Fannie Mae, No. 1:12CV311-HSO-RHW, 2013 WL 12172632, at *1 (S.D. Miss. Nov. 14, 2013) (stating, absent good cause, the court will not normally grant discovery motions filed on the eve of the discovery deadline).