Litigation

Court Orders Defendant to Re-Produce Documents Previously Produced as TIFF Images, Setting Out Three Format of Production Options

By reston, Gates and Ellis

Goodbys Creek, LLC v. Arch Ins. Co., 2008 WL 4279693 (M.D. Fla. Sept. 15, 2008)

In this case involving the alleged breach of a performance bond, the court considered plaintiff’s motion to compel and for sanctions.  Among other things, plaintiff requested that defendant be ordered to re-produce, in native format, documents previously produced as TIFF images.  The court granted only that portion of the motion, and gave the defendant three options for its re-production:  (1) provide any documents previously supplied as TIFF images in their native format, (2) provide the documents in another comparably searchable format, or (3) supply plaintiff with software for searching the TIFF images.

Plaintiff had initially failed to specify any desired format of production in its request for production to defendant.  Because of such failure, defendant chose, of its own accord, to produce the requested documents “via TIFF images” rather than in their native format.  Plaintiff argued that, by converting the documents to Tagged Image File Format (TIFF), defendant failed to comply with Rule 34(b)(2)(E)(ii), which states “[i]f 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[.]”

Defendant argued that Rule 34 “permits a party responding to a request for production to produce documents in a reasonably usable form if the party seeking discovery does not specify the form in which the information is to be produced.”  Defendant further argued that “TIFF images are a reasonably usable form of electronic production.”

In reaching its decision, the court quoted the commentary accompanying the 2006 amendments to Rule 34:

However, the responding party's choice of form is limited to the extent the option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation.  If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.

Rule 34 advisory committee's note (2006 Amends.) (Note) (emphasis added); see also In re Seroquel Prods. Liab. Litig., 244 F.R.D. 650, 655 (M.D.Fla.2007) (highlighting the importance of searching functions and the utility of native formats); Hagenbuch v. 3B6 Sistemi Elettronici Industriali S.R.L., No. 04 C 3109, 2006 WL 665005, at *3-*4 (N.D.Ill. Mar.8, 2006) (finding TIFF images inadequate).

The court noted that plaintiff’s central complaint regarding defendant's conversion of the requested documents into TIFF files appeared to be that the conversion made searching the numerous documents much more difficult – “the very concern the Note addresses.”

Accordingly, the court determined that, to the extent defendant maintained the requested documents in a form that made them “searchable by electronic means,” its decision to convert the documents to a format alleged to be much more difficult to search was "impermissible."  The court gave defendant three options for re-producing the material, and denied plaintiff’s remaining requests for relief and for sanctions.

A copy of the full decision is available here.

Full post as published by eDiscovery Law on September 24, 2008 (boomark / email).