In City of Colton v. American Promotional Events, Inc. (and related consolidated cases) [pdf], No. EDCV 09-01864 (C.D. Cal. Oct. 13, 2011), U.S. Magistrate Judge Suzanne H. Segal denied the plaintiff United States’ motion for review of the Special Master’s Report recommending the form of production of electronically stored information (“ESI”).  Judge Segal affirmed the Special Master’s order requiring that the United States re-produce ESI in its native format with metadata intact, or categorize the ESI, by production request.

The parties had entered into a stipulation that governed the form of production.  The stipulation, which was included in the Case Management Order (“CMO”), required both parties to post documents to a shared repository as TIFF or JPEG images with certain document identifier information including, Bates number, page count, CD volume name, producing party and date of production.  However, neither party was required to provide or produce common metadata such as document date, author, recipient, folder range and folder title. The parties contributed to the repository for more than 6 years before the defendants objected that the documents should be produced as they are kept in the usual course of business or must be organized and labeled to correspond with the corresponding document request as required by Federal Rule of Civil Procedure 34(b)(2)(E).

The Special Master agreed rejecting the United States argument that the CMO exempted the parties from the requirements of the FRCP.  Rather, the Special Master ruled that the CMO addressed the form in which ESI must be produced, but was silent as to how documents should be organized for production.  Accordingly, the Special Master ruled that the parties were bound by Federal Rule of Civil Procedure 34(b)(2)(E) which requires that ESI production be organized in such a way as to facilitate, not hinder, the usefulness of the information produced.  Magistrate Judge Segal agreed, holding that the parties’ agreed upon production did not comply with the Rule and ordered the United States to produce ESI in its native format with metadata intact or to label ESI productions to correspond to the categories in the request.