In re Concho Resources, Inc. Securities Litigation, No. 21-cv-2473, 2025 WL 2899518 (S.D. Tex. Oct. 10, 2025) 

Why This Alert Is Important 

This ruling underscores that producing a high volume of documents does not satisfy discovery obligations if the format creates "unnecessary obstacles" for the receiving party. It highlights the court’s willingness to enforce native format production for dynamic databases when static exports, such as Excel, strip away essential functionality and data relationships.

Overview of the In re Concho Case

In In re Concho Resources, Inc. Securities Litigation, a certified class of investors alleged that Concho Resources, Inc. and its executives committed securities fraud by misrepresenting a new drilling methodology. The plaintiffs claimed the company concealed that the technology was unproven and failing to meet return expectations, leading to significant economic losses when the truth emerged. Central to the dispute was access to the ARIES database—Concho’s primary system for well data and revenue streams.

During discovery, Concho produced over 2.8 million pages of documents, notably including documents exported from the ARIES database as Excel spreadsheets. However, the plaintiffs moved to compel the production of the database in its native format. They argued the produced Excels were a "disorganized document dump" that lacked the metadata and "tie-in" settings necessary to understand how various datasets related to each other. Specifically, the plaintiffs noted the spreadsheets lacked the "decline curve assumptions" and calculation functionalities inherent in the native ARIES environment. 

Concho resisted, arguing the production was already extensive and that extracting historical database states would be overly burdensome following its acquisition by ConocoPhillips. Judge Andrew S. Hanen was tasked with determining if the defendant's export to Excel satisfied the "reasonably usable" standard of Rule 34.

In re Concho Ruling Summary

Proportionality Favors Broad Discovery 

Judge Hanen applied the balancing factors of Rule 26(b)(1), finding the request both relevant and proportional. Given the estimated $2.3 billion in controversy, the court noted that "the importance of this action weighs in favor of allowing discovery." The court emphasized that Concho held "exclusive access" to the native data and possessed the resources—especially as a subsidiary of a massive corporation—to "fairly participate in the discovery process".‍

Functionality and Unnecessary Obstacles

The court rejected the argument that quantity compensates for poor quality. Citing Rule 34’s Advisory Committee Notes, the court explained that while ESI can be exported, a party is not free to convert it into a form that makes it "more difficult or burdensome for the requesting party to use". Judge Hanen found that the native format was essential because the spreadsheets were "unintelligible" for determining how they "tie in" together or correlate with budgets and forecasts.

Rejection of Self-Inflicted Burden 

Concho argued that producing native data would be burdensome because specialized employees had left post-acquisition. The court was unpersuaded, stating it could compel a party to "make every effort to produce the documents to which the Class Representatives are entitled". Because Concho had previously transferred similar data to third-party auditors, the court found the burden did not outweigh the benefit, particularly since "parties cannot create unnecessary obstacles by exporting data into a more difficult format".

Expert Analysis from Hon. Andrew Peck (ret.), Senior Counsel, DLA Piper

The native production of a key database can and should be ordered where the defendant’s burden argument is hollow. Nor does the fact of the large volume of production overcome the need for the database. One minor point: we are now over 10 years since the 2015 FRCP amendments, but counsel, and–alas here–judges, still cite the “reasonably calculated to lead to the discovery of admissible evidence” language that was removed from the Rules in 2025. 

eDiscovery Case Law Tip 

To avoid similar disputes, legal teams should address the "form of production" early in the Rule 26(f) meet-and-confer process, particularly when dealing with structured data or proprietary databases. Ensuring that ESI is produced in a format that preserves the relationships and functionality used in the "usual course of business" can prevent costly motions to compel and court-mandated re-productions. For a deeper dive into managing these obligations, download Exterro’s Guide to the FRCP, which provides practical strategies for navigating ESI protocols and proportionality.

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