Sent to you by pakurilecz via Google Reader: Court Orders Defendant to
Re-Produce Documents Previously Produced as TIFF Images, Setting Out
Three Format of Production Options via Electronic Discovery Law by
[log in to unmask] (K&L Gates) on 9/24/08
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.

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