Failure to Cooperate During Discovery Results in Expensive Costs for Reproduction

September 02, 2015


Themis Bar Review, LLC v. Kaplan, Inc., WL 3397877 (S.D. Cal. May 26, 2015).

In this action, defendant served plaintiff with a request for production that sought, among other things, documents related to the plaintiff’s pass rate and the data substantiating the pass rates posted in the plaintiff’s advertising materials. The plaintiff produced the relevant data in a PDF format from Microsoft Excel spreadsheets.  This format, in turn, stripped the documents of all their “user friendly” capabilities (i.e., the ability to filter, sort, and/or search the excel charts).

The defendant complained that the PDF format was not the native format the data was kept in by plaintiff.  Defendant further stated that the plaintiff also failed to respond to any of its many requests during a meet and confer conference wherein defendant asked for the metadata and related email documents.  In response, plaintiff argued that they would comply with defendant’s request to produce the emails and metadata in native form only if defendant paid for the associated costs.

Under Federal Rule Civil Procedure 34, the production of documents or ESI must be produced in “a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” As such, the court found that the defendant had notified the plaintiff of the need to produce the spreadsheets and emails in an Excel format, and had tried to meet and confer as contemplated by the parties jointly submitted “Discovery Plan.”

Not surprisingly, given the judicial desire for a cooperative discovery process, the court ordered the plaintiff to reproduce the emails and the associated metadata in searchable format and further ordered plaintiff to pay for the costs of reproduction.  This case, like many others in recent months, serves as a good reminder that often the client is best served by a counsel willing to cooperate during discovery.  What’s more – a cooperative counsel often retains credibility in the eyes of the Court.