Rules Matter—Second Production Ordered When City Did Not Follow Fed.R.Civ.P. 34

In a breach of contract claim against the City of Salisbury and its Mayor, the Plaintiff sought an order compelling the City to produce certain ESI and metadata. 1 Fitzwater Street, LLC v. Taylor, 2026 WL 1830959 (D. Md. Jun. 25, 2026)(Coulson, J.).  The Court ordered production in native form with metadata, as requested.

In sum, Plaintiff’s request was for production of ESI “in its native form with all associated metadata.” Id. (emphasis in original).  Defendants did not comply with Fed.R.Civ.P. 34.  For example, their response did not state that they intended to produce in a different form. Instead, they unilaterally made a PDF production.

Plaintiff challenged the form. The City made outdated arguments that it lacked technical capability, vendors are costly, and metadata was not necessary.  The Court applied its “ESI Principles” and Rule 34, and it ordered production in native form. Importantly, it added that “the hiring of a third-party vendor where necessary is a routine practice for producing parties….”

The analysis begins: “This dispute presents the straightforward question of whether the City is obligated to provide ESI in native format with metadata instead of the PDFs actually produced…. Plaintiff states that contrary to the production format specified in Plaintiff’s interrogatories and requests for production of documents, Defendant has provided ‘static PDFs stripped of critical metadata.’”

The Court looked to its “Principles for the Discovery of Electronically Stored Information in Civil Cases” (the “Principles”), 2.04.[1]  It wrote: “The Principles also make clear that in any event a party need not ‘accept production in a form that substantially degrades or jeopardizes the utility, integrity, and/or authenticity of ESI.’” The Court added: “PDF production, by converting a native file to a static image and stripping the metadata, is just such a form.”

Next, Judge Coulson wrote:

To be very clear, there are many cases where the parties prefer static image production of ESI, whether by PDF or even paper copy. For example, if the ESI is not voluminous, if the parties are not using an ESI review platform that requires native or “near native” files, or if the metadata surrounding a file is not germane, static image or paper production might be the most efficacious. And where the parties are in agreement on that, the Court need not insert itself. Where, however, there is no agreement, the requesting party need not accept such a format.

Though not exhaustive, the Principles provide alternatives for ESI production format that includes metadata, including near-native “Hybrid” Production (e.g., TIFF file format with associate load files containing associated metadata) and native production as Plaintiff has specified here (ESI in its original format and associated metadata). Principles, app. 2.1 and 2.2. In this rapidly evolving area, there no doubt are others.

The Court noted that Plaintiff requested native form and the defendant City did not object.  That was an unforced error. Fed.R.Civ.P. 34 sets out a prescribed “dance routine.”  A requesting party may specify the form or forms of production.  The producing party should comply or object and state the form or forms that it intends to use.  The City did not do that.  If it had done so, pre-production discussions could have commenced.

Instead, the City presented its defense post-production.

The City now raises several points in defense of its production of PDFs. First, the City clarifies that without greater technical know-how, they will have to hire a third-party consultant to assist with the production of the metadata and native file extraction, who charges a $7,500 retainer, a rate of $375 per hour, and additional costs for ESI storage…. Accordingly, the City argues that the burden of such production outweighs its relevance.

Id. at *2.

The Court made “several observations” about that argument.

“First, that objection was not raised prior to production. To the contrary, the parties agreed to ‘generally adhere’ to the Principles, which advise that production should be in the format specified and that the requesting party in any event need not accept a static image production as discussed above…. Second, the Federal Rules of Civil Procedure were specifically amended in 2006 to contemplate the discovery of ESI, and since that time, the hiring of a third-party vendor where necessary is a routine practice for producing parties who do not otherwise have such capability where ESI is at issue in the case.” Id. at *2 (emphasis added).

Next, the Court addressed the City’s argument “that it produced PDFs because they present the ‘only practical, reasonable means by which the documents can be extracted, reviewed, redacted, and Bates-labeled.’”  Id. at *3.  The Court was not buying it:

Although that may be true without the assistance of a vendor, the Court observes that the City has contacted a vendor and has provided the contours of the expenses at issue here…. All of the tasks listed by the City can be easily incorporated into a vendor-assisted review and production process.

Id.

Finally, the City made an argument best suited for a prior decade.  “[T]he City questions the need for metadata.”  Id. at *3.  The Court noted that “Plaintiff specifies that it seeks emails, electronic documents, and attachments in native format and needs the metadata to (1) determine authorship, recipients, or custodians; (2) to confirm sent/received timestamps; (3) to reconstruct timelines; (4) to identify whether emails were forwarded, altered, or created contemporaneously; (5) to understand file paths, folder locations, or document families; and (6) to authenticate documents.”

The Court agrees that the stated reasons for the metadata request establish relevance Rule 26(b). In view of the complicated facts underlying the contracts and resolutions at issue, the Court finds that information such as when emails were received, sent, edited, and by whom are all relevant details to the present litigation. By extension, the Court likewise agrees that the converted PDFs are less usable, as the production strips the Plaintiff of its ability to review the relevant metadata. The Court does not find the expenses required by the City’s vendor to outweigh the relevance of the metadata in this context. Moreover, the Court is not persuaded by any argument that duplicative production is unduly burdensome, as it was the City that unilaterally decided to ignore the requested production format in the first place. For these reasons, the Court does not find the City’s 26(b) case law persuasive.

As a “belt and suspenders” argument, the Court explained that Rule 34 permits a request to specify the form or forms of production and Plaintiff did so.  It quoted the Advisory Committee Note to the effect that: “A party that responds to a discovery request by simply producing electronically stored information in a form of its choice, without identifying that form in advance of the production in the response required by Rule 34(b), runs a risk that the requesting party can show that the produced form is not reasonably usable and that it is entitled to production of some or all of the information in an additional form….” Id. at *3.

In response to a last-ditch City argument, the Court wrote:

Although the City states it “objected and repeatedly informed Plaintiff of the circumstances why the City did not comply with Plaintiff’s demand and why producing this information in the requested format was unduly burdensome and non-proportional to the needs of this case,” review of the City’s discovery responses shows no such objection.

Id. at *4 (emphasis added).  “Ultimately, Plaintiff’s request for an order compelling the production of ESI in native format with metadata preserved is GRANTED.”  Id.

It goes without saying that “rules matter.” See Rules Matter: A “Perry Mason Moment” Was Derailed by a Discovery Violation (Mar. 6, 2021).

The practice of law may be poetically likened to sailing a ship. Constitutions, case law, and legislative enactments are to the lawyer what charts, buoys, and beacons are to the sailor. The compass, however, is generally agreed to be the most important navigational aid on ship….  The Maryland Rules of Procedure are the lawyer’s compass and serve to help him [or her] steer through the narrows of pleading, pass the rocks of default, around the shoals of limitation, and safely into the harbor of judgment. It is a reckless sailor, indeed, who puts to sea without a compass, and it is a reckless lawyer who fails to familiarize himself [or herself] with the Rules of Procedure before he files and tries a case.

Colonial Carpets, Inc. v. Carpet Fair, Inc., 36 Md. App. 583, 584, 374 A.2d 419, 420–21 (1977) (Emphasis added).

The “rules of procedure are not to be considered as mere guides or Heloise’s helpful hints to the practice of law, but rather precise rubrics that are to be read and followed, admonitions go unheeded by some practitioners. When that occurs, we are left to wonder whether we are engaged in an endless struggle, just as waves beat upon the shore, fall back and then repeat over and over ad infinitum.” Colonial Carpets, 36 Md.App. at 584-85, 374 A.2d at 421.

“Attorneys practicing before this court disregard the Federal Rules of Civil Procedure and Local Rules at their peril.”  Black v. Quest Diagnostics Inc., 2005 WL 8174704, at *2 (D. Md. Nov. 17, 2005).

 

[1] I chaired a Bar Association committee that drafted the suggested Principles and submitted them to the Court.