Stipulations regarding the form of production of electronically stored information can come back to haunt you.  That’s what happened to defendants in a recent trademark infringement case out of the Northern District of California.

The parties agreed in their Joint Rule 26(f) report to produce electronically stored information in “paper, PDF, or TIFF format.”  (If you’re thinking “whatchou talking ’bout Willis? — us too.) They also agreed that the production of metadata would be limited to “Date Sent, Time Sent, Date Received, Time Received, To, From, CC, BCC, and Email Subject” absent a showing of compelling need.  Finally, the parties agreed to produce spreadsheets in native format when it was “more practicable to do so.”

The problems started when plaintiff produced responsive emails in 7 large unsearchable pdf files. Defendant complained that this violated Federal Rule of Civil Procedure 34(b)(2)(E) because the emails were not in native format or “reasonably usable.”  The court reminded the defendant that although Rule 34 controls, it only controls ONLY “unless otherwise stipulated,” which was what the parties did here. (DOH.) The complaining party also “failed to articulate why metadata is important to emails, when every email should contain the information sought on the face of the document.”  Motion denied.

The defendant also claimed that spreadsheets produced by the plaintiff should have been in native format.  The court again rejected this argument stating that a “responding party may generally produce documents in the format of their choice.”  Further, the parties’ stipulation did not require production in native format unless it was “more practicable to do so,” which the court concluded it was not.  Consequently, the defendants were stuck with the PDFs and task of having to manually search the thousands of documents.

It’s not surprising that the parties’ stipulation was upheld — it’s not the court’s job to police whether attorneys’ practices are in their client’s best interests.  But there are at least two troubling aspects of this decision.  First, the notion that spreadsheets are not required in native format is just plain wrong given that native format is the only way to truly have the information about underlying calculations on a spreadsheet. Perhaps counsel failed to articulate the rationale clearly enough for the court, or the court did not understand it here.  The latter seems likely, especially given that the court also found “that every email should contain the information sought on the face of the email.”  That finding demonstrates a need for better education of the court by counsel as to the value of metadata.  Lack of understanding the technology is not a new issue, and one that we’ll continue to face in eDiscovery.

Make sure you understand what you are agreeing to in an ESI order before you do so — you’ll be held to your stipulations, even when they fall below the floor of the FRCP in terms of what you can have.

To read the full opinion, see Melian Labs Inc. v. Triology LLC, Case No. 13-cv-04791-SBA (KAW), 2014 WL 4386439 (N.D. Cal. Sept. 4, 2014).  The case has been digested and added to the case law in  eDiscovery Assistant — to find it, filter using the title in the search box.