Johnson v. Italian Shoemakers, Inc.
No. 3:17-cv-00740-FDW-DSC (W.D.N.C. Oct. 22, 2018)
In this opinion, the district court reviewed the magistrate’s recommendations and imposed monetary sanctions for the plaintiffs’ discovery failures. Specifically, the plaintiffs disobeyed the court’s previous order compelling discovery and violated Federal Rule of Civil Procedure 34.
The plaintiffs, David Johnson and Alda, Inc. (collectively “Johnson”), brought this case against Italian Shoemakers, Inc. (“ISI”), alleging breach of contract and fraud.
Discovery has already been problematic. In response to ISI’s earlier motion to compel, the court ordered Johnson to produce “complete responses” to discovery. The order clarified that those responses should comply with the format requirements of Rule 34. Under the rule, a party should produce responsive documents “as they are kept in the usual course of business.” Alternatively, a party may produce documents in another format so long as they are organized and labeled to correspond with specific requests.
Johnson did not meet those requirements. While they did eventually produce responsive documents, those included numerous emails in PDF format rather than the native email format. Further, they produced some documents after the discovery deadline.
ISI requested sanctions for this noncompliance. The magistrate judge concluded that Johnson “disobeyed their order” and recommended that the district court determine appropriate sanctions.
The court began its analysis by dissecting Rule 34. It noted that, under the rule, “a producing party need not organize and label documents kept in the usual course of business.” Documents should, however, be “searchable and/or sortable by metadata fields” to be deemed reasonably usable.
In addition to the rule, this case was also subject to a standing court order governing the protocol for discovery. That order provided that a producing party “should inform all other parties…in writing, at or before the time of production” if it would not be producing metadata.
Here, even after the clarifying order compelling discovery, Johnson “continued to [produce] emails in PDF format” rather than in native format. Needless to say, PDF “is not how emails are kept in the ordinary course” of Johnson’s business. Nor did Johnson label those PDFs to correspond with individual discovery requests, as required by the rule and the court’s order.
Further, Johnson did not produce these responsive documents until after the court’s discovery deadline. The court pointed out in a footnote that Johnson “contested the deadline” set by the court. That “disagreement,” however, “does not negate [Johnson’s] obligation to comply” with the deadline.
The court concluded that Johnson had “failed to comply with this court’s discovery order” without substantial justification. As the court noted, Johnson had previously “been made aware of deficiencies in their discovery production” without effect.
The court then turned to sanctions. Under Rule 37(b)(2)(A), the “court must order the disobedient party…to pay the reasonable expenses” caused by the disobedience. Therefore, the court imposed monetary sanctions, including ISI’s attorneys’ fees relating to the motions. The court also ordered Johnson to produce all of their discovery, “including attachments, in usable form” within two days.
Takeaways on Choosing a Form of Production
Unless the court or an opponent insists otherwise, production in native format is likely easier than conversion to an alternative format. When another format is used, the production must also be organized and labeled, which tripped Johnson up here. Although the court only touched on the importance of metadata, the metadata accompanying native-format documents can simplify categorization. Whenever possible and practicable, consider requesting and producing documents in native format.
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