Case Law: Brinckerhoff v. Town of Paradise

Friday, December 24, 2010 by Thought Leadership Team

Court Denies Belated Motion for Native Production

Brinckerhoff v. Town of Paradise, 2010 WL 4806966 (E.D. Cal. Nov. 18, 2010). In this employment discrimination litigation, the parties moved to compel discovery and production, obtain protective orders and impose sanctions. Among its motions to compel, the plaintiff sought production of responsive e-mails in their native format. Although the Federal Rules of Civil Procedure do not require a party to produce e-mails in their native format, the court noted this does not permit the party to produce the information in a form that “makes it more difficult or burdensome for the requesting party to use…efficiently.” The court acknowledged that both parties possess a mutual obligation to discuss electronic discovery at the Rule 26(f) conference and considered the plaintiff’s failure to address ediscovery in both the conference and in her production requests. The belated request for native production along with the determination that the plaintiff would not be “hard pressed” to review the approximately 4,000 pages of e-mails produced, led the court to deny the plaintiff’s request with the exception of one document – for which the metadata would likely reveal useful information. Admonishing both parties for exhibiting unprofessional conduct, the court denied sanctions.


One of the most problematic and common issues involving production requests is whether documents are produced in compliance with the Federal Rules of Civil Procedure. Fed.R.Civ.P. Rule 34(b) provides the producing party the option of organizing documents produced to correspond to the requests to which they are responsive, or producing the documents "as they are kept in the usual course of business." The failure to produce documents in accordance with these requirements may result in a court order to reproduce. Production can be costly the first time around, and being on the losing end of a court order requiring a reproduction is not what any litigant wants. Therefore, the litigation team responsible for production should exercise due care, ensuring production is organized and in a compliant format. In addition, the plaintiff in the above case is now tasked with reviewing what she estimated to be 4,000 pages of e-mails produced in hard copy format. This case demonstrates that in ediscovery you get what you ask for – or rather, what you don’t ask for. By not requesting a native production in the meet and confer conference and in her production requests, the plaintiff essentially waived her right to object to the production format chosen by the defendant. Finally, as noted by the court in this decision, parties have an obligation to discuss electronic discovery at the Fed.R.Civ.P. 26(f) meet and confer conference. Having a discussion about production format and other related issues up front, while avoiding the urge to "hide the ball" regarding documents and production capabilities is incredibly important. This will allow litigants to avoid committing common production pitfalls, potentially preventing them from suffering severe economic and time consequences, and will provide a measure of defense if opposing counsel later files a motion for reproduction or for sanctions alleging proper production protocol was not followed.