United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
E. MARTIN MAGISTRATE JUDGE
matter is before the Court on a Motion of the
Defendants/Counter-Plaintiffs, Estate of Melinda Lindsey and
Julie Kirby, in her Capacity as Personal Representative of
the Probate Estate of Melinda Lindsey, for Order to Compel
Discovery by Plaintiff/Counter-Defendant, MetLife Investors
USA Insurance Company [DE 84], filed on March 16, 2018.
Defendants seek to compel Plaintiff to produce certain
electronically stored information. On March 30, 2018,
Plaintiff filed a response, and on April 6, 2018, Defendants
filed a reply.
filed this lawsuit against Steven Lindsey and the Estate of
Melinda Lindsey, seeking rescission of a life insurance
policy MetLife issued to Melinda Lindsey based on her alleged
misrepresentations during the application process. Throughout
written discovery, MetLife has generally produced documents
in non-searchable PDF format, which it maintains is the
“most usable format” appropriate for the
information. Defendants have repeatedly objected, arguing
that MetLife is obligated to produce the documents as they
are maintained in the normal course of business,
i.e., in their “native” format.
Defendants have identified several electronic platforms in
which MetLife keeps its documents in the usual course of
business. MetLife characterizes the additional data that
Defendants would receive from production in native format as
irrelevant, and denies that it is obliged to produce it.
Although the parties have repeatedly conferred, and MetLife
has produced some additional documents in response to the
objections and the instant Motion, the dispute persists.
Defendants' Motion requests that MetLife produce all
responsive documents in the form in which they are maintained
in the usual course of business.
may seek an order to compel discovery when an opposing party
fails to respond to discovery requests or provides evasive or
incomplete responses. See Fed. R. Civ. P. 37(a). A
party objecting to the discovery request bears the burden of
showing why the request is improper. See McGrath v.
Everest Nat'l Ins. Co., 625 F.Supp.2d 660, 670 (N.D.
Ind. 2008). The Court has broad discretion when determining
matters related to discovery. Thermal Design, Inc. v. Am.
Soc'y of Heating, Refrigerating & Air-Conditioning
Eng'rs, Inc., 755 F.3d 832, 837 (7th Cir. 2014);
Rennie v. Dalton, 3 F.3d 1100, 1110 (7th Cir. 1993).
Rule of Civil Procedure 34 provides that with regard to
electronically stored information, a party must
“produce documents as they are kept in the usual course
of business or must organize and label them to correspond to
the categories in the request. . . . If a request does not
specify a form for producing electronically stored
information, a party must produce it 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). However, the
Court can “limit the frequency or extent of
discovery” if “the discovery sought is
unreasonably cumulative or duplicative.” Fed.R.Civ.P.
now represents that it has produced images of all relevant
documents from its various electronic platforms, and that
“those records that could be obtained in a searchable
format have been produced in that format.” However,
MetLife concedes that the method in which it produced the
documents is not how they are kept “in the usual course
of business, ” as required by Rule 34(b)(2)(E)(i).
Although MetLife repeatedly states that PDF is the
“most usable” format, it cites no authority
showing that this satisfies its obligations under Rule 34.
Moreover, MetLife's production was not consistent with
what the parties discussed at the beginning of discovery. On
July 28, 2016, the parties filed their Report of Parties'
Planning Meeting, which stated: “The parties anticipate
making a preliminary production of ESI by hard
. . . All ESI produced electronically will be produced in
native format to the extent possible.” (emphasis
added). After MetLife made its initial production in response
to Defendants' first requests for production, Defendants
objected to the format of the documents, but MetLife
apparently ignored the objections and continued to produce in
PDF format. See Ex. I to Defs.' Mot. to Compel
MetLife claims that Defendants' request is
disproportionate, MetLife offers no argument on that point
beyond objecting to the relevance and stating that the
production would be duplicative. MetLife does not discuss the
volume of the additional information sought, the expense
involved, or the risk of revealing any confidential or
privileged information; nor has it moved for a protective
order. A request to produce documents is not disproportionate
or unreasonable simply because some of the material sought
has already been produced, particularly when the initial
production did not conform to the rules. See Jannx Med.
Sys., Inc. v. Methodist Hosps., Inc., No.
2:08-CV-286-PRC, 2010 WL 4789275, at *3-4 (N.D. Ind. Nov. 17,
2010) (ordering party to reproduce in native form documents
previously produced in PDF form because “the option to
produce in a reasonably usable form does not mean that a
responding party is free to convert [ESI] . . . to a
different form that makes it more difficult . . . to use
efficiently in the litigation”).
says that production in native format would not yield
relevant information, because in its view the “only
remaining issue” in the case is whether it had a duty
to investigate the information in the policy application
prior to issuing it. However, MetLife has not shown that the
requests fall outside of the legitimate scope of discovery.
Relevance is “construed broadly to encompass any matter
that bears on, or that reasonably could lead to other matter
that could bear on, any issue that is or may be in the
case.” Oppenheimer Fund, Inc. v. Sanders, 437
U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329
U.S. 495, 501 (1947)). In their response to MetLife's
pending motion for summary judgment, Defendants cited to an
Indiana Supreme Court case finding a duty to investigate
where “a reasonable person would have investigated
further and the investigation would have uncovered the
truth.” Colonial Penn Ins. Co. v. Guzorek, 690
N.E.2d 664, 674 (Ind. 1997). If the Court were to apply this
standard, information about who accessed the application
information - which might be visible in native form - could
be relevant to whether that person should have investigated
although Defendants are entitled to the previously produced
documents in native form, the Court clarifies that they are
not entitled to all metadata. Some of Defendants' filings
could be interpreted to argue that Defendants are entitled to
all metadata related to the documents previously produced. In
general, metadata must be specifically requested in advance,
and Defendants did not do that. See, e.g., Palar v.
Blackhawk Bancorporation Inc., No. 11-4039, 2013 WL
1704302, at *2 (C.D. Ill. Mar. 19, 2013) (“Most courts
dealing with questions of production of metadata have held
that metadata need not be produced unless specifically
requested.”); Autotech Techs. Ltd. P'ship v.
Automationdirect.com, Inc., 248 F.R.D. 556, 559 (N.D.
Ill. 2008) (finding that “it seems a little late”
to request metadata after documents have been produced).
While production in native format will inevitably result in
the exchange of some metadata, Defendants are not entitled to
all metadata generally, except to the extent it appears with
the documents as kept in the usual course of business.
Palar, 2013 WL 1704302, at *2 (denying motion to
compel production of metadata where movant only requested
production in “native” form because
“production of an electronic document in ‘native
format' does not result in production of
foregoing reasons, the Court GRANTS the
Motion of the Defendants/Counter-Plaintiffs, Estate of
Melinda Lindsey and Julie Kirby, in her Capacity as Personal
Representative of the Probate Estate of Melinda Lindsey, for
Order to Compel Discovery by Plaintiff/Counter-Defendant,
MetLife Investors USA Insurance Company [DE 84]. As Rule
37(a)(5)(A) provides, because
the motion is granted - or . . . the disclosure or requested
discovery [wa]s provided after the motion was filed - the
court must, after giving an opportunity to be heard, require
the party . . . whose conduct necessitated the motion, the
party or attorney advising that conduct, or both to pay the