When a Party Requests Native Files….

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A blog post by Joshua Gilliland, Esq. on his blog Bow Tie Law Blog.

This article discusses the request to produce native files during the discovery phase of litigation.

The blog post discusses the following case, "A Defendant/Producing Party resisted production of email in native file after making general objections to the production format. Linnebur v. United Tel. Ass’n, 2011 U.S. Dist. LEXIS 124473, 20-21 (D. Kan. Oct. 27, 2011)."

The article references that the the court opinion mentioned, "A party resisting a production in native format in an opposition to a motion to compel has the burden to show the “information is not reasonably accessible because of undue burden or cost.”"

The article goes on to state, "The giant problem with that viewpoint is a producing party must demonstrate under Federal Rule of Civil Procedure Rule 26(b)(2)(B) why the ESI is not reasonably accessible because of undue burden or cost. A lawyer simply proclaiming the collection or production of native files is “unduly burdensome” does not comply with Federal Rule of Civil Procedure Rule 26(b)(2)(B)."

The author goes on further to describe an example of how to show undue burden, "Judge’s Facciola’s opinion United States ex rel. McBride v. Halliburton Co., 2011 U.S. Dist. LEXIS 6412, 1-2 (D.D.C. Jan. 24, 2011) illustrates the above very effectively, especially his description of the testimony outlining the collecting methodology: “In excruciating, but highly educational and useful, detail.” That statement should set the framework for showing undue burden."  Links to the referenced case law opinions are provided in the article.