COURT REFUSES TO COMPEL NATIVE PRODUCTION OF “REASONABLY USABLE” ESI

Babakhanov v. Ahuja

S.D.N.Y. October 23, 2023

Why This Case Is Important

Litigants would be wise to specify what formats they want ESI produced in while negotiating e-discovery parameters, as courts will be reluctant to require additional production in native formats if the ESI has already been produced in a “reasonably usable” format like PDFs.

Overview

In this breach of contract dispute regarding the sale of a medical practice, Defendants, who sold the practice, moved to compel the production of electronic medical records in their native format. Plaintiffs, whose suit alleged that the Defendants had engaged in “systemic waste, fraud, and abuse,” had already produced the patient files in PDF format.

Defendants’ motion enumerated several ways PDFs differed from native format electronic medical records; Plaintiffs responded that Defendants had not specified that they wanted records produced in their native format, and that PDFs were “reasonably usable,” as it was the standard format for producing the records for insurance companies. 

Ruling

• Respondents Cannot Make ESI “More Difficult or Burdensome.” Under FRCP 34(b)(2)(E), parties should produce documents “in the form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” The freedom to produce ESI in “reasonably usable” form does not entitle litigants to “convert [it] 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.” Plaintiffs produced the medical records in a PDF format that was a standard business process for their transmission to insurance carriers.
• Parties Should Not “Degrade” Searchability of ESI. This stipulation extends to searchability, as the court noted “if ESI is kept in an electronically-searchable form, it should not be produced in a form that removes or significantly degrades this feature.” However, courts have denied requests for document metadata, even when it might have probative value, “where that potential value is outweighed by the cost and burden of production.” The PDFs were searchable, and the only missing information was the identity of the person who entered the information into the electronic record.
• No Need to Produce Same ESI Twice. The PDFs were an ordinary format for the records, did not diminish their usability or searchability, and contained all information relevant to the dispute. Absent a compelling reason why the PDF would make it more difficult or burdensome for the Defendants to argue their case, the judge refused to order additional production, noting that Defendants “should have asked for such records up front” and additional production “would impose an undue burden on Plaintiffs exceeding any value or potential relevance… for this litigation.”

Legal Analysis

by: David Cohen, Partner, Chair E-Discovery Group, Reed Smith

This decision was an easy one for the Court because of Federal Rule 34(b)(2)(E), providing that it is sufficient to produce documents in a reasonably usable form, and that a party need not produce documents in more than one form. The decision could have been more difficult if the Defendants, in their initial document request, availed themselves of their option to “specify the form [in which the information] is to be produced” pursuant to Rule 34(b)(1)(C). Plaintiffs could still have objected to the requested form, under Rule 34(b)(2)(D), but then Defendants could have sought a court resolution before the production occurred.