You Can’t Get What You Don’t Ask For

“You can’t get what you don’t ask for.” This old adage we likely all heard growing up is particularly relevant in eDiscovery disputes. The federal courts make clear that if you want electronically stored information (ESI) in a particular format, you must ask for it upfront. There is no mind reading in litigation. 

Remember that, under the Federal Rules of Civil Procedure, as the requesting party you can specify the form in which the ESI is to be produced. FRCP 34(b)(1)(C). Under Federal Rule of Civil Procedure 34, a party is required to produce documents (1) “as they are kept in the usual course of business or must label them to correspond to the categories in the requests,” Fed. R. Civ. P. 34(b)(2)(E)(i), and (2) if a request does not specify a form of producing ESI, “in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Fed. R. Civ. P. 34(b)(2)(E)(ii). 

So start by requesting the information in your desired format. In Babakhanov v. Ahuja: No. 23-cv-2785 (LJL), 2023 WL 6977394 (S.D.N.Y. Oct. 23, 2023), Plaintiffs allege that Defendants engaged in waste, fraud, and abuse in their operations of Perry Avenue Family Medical, Inc. (“PAFM”), which was sold by Defendants to Plaintiffs. The Defendants moved to compel the production of electronic medical records in the possession of Plaintiffs. Plaintiffs provided the requested patient files from the electronic medical records (EMR) in PDF form. Defendants then sought an inspection of the EMRs in their native form.

While the Defendants argued that they needed access to the EMR in native form for a variety of reasons, including the ability to view the identity of who prepared, reviewed, viewed, or documented entries in a chart and the ability to see the templates, functions, dropdowns, and buttons available when completing a chart, the District Court denied the request, finding that Plaintiffs demonstrated that the requested information was produced in a form in which it is ordinarily kept and in a reasonably usable form. The only information not in the PDF documents was the identity of the person who inputted the information into the EMR, but the PDF documents indicated who signed the electronic health record. Further, the documents were already produced in (searchable) PDF form, and reproduction in native format would impose an undue burden on Plaintiffs that exceeded any value or potential relevance. 

Ultimately, the court’s decision came down to the following: “Defendants knew the form in which PAFM kept records. If they wanted the records in native format, they should have asked for such records up front.” 

When facing litigation, your case will involve electronically stored information. Strassburger McKenna Gutnick & Gefsky has teamed with experienced vendors and can assist you with the most up-to-date and efficient methods to manage such discovery in your litigation. Gretchen Moore chairs the firm’s eDiscovery Committee. She can be reached at gmoore@smgglaw.com or 412-281-5423.

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