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Production of Plaintiff’s Pain Journal in Original Digital Form Not Required by Fed. R. Civ. Proc. 34(b)

image of journalIn what is becoming a recurring outcome, a federal magistrate judge in New Mexico denied a request for a plaintiff’s pain journal in its native format because it was not requested in its original form.  As detailed in a former post, under Federal Rule of Civil Procedure 34 and many state rules, a party need only produce electronic documents in one format and if no production format is specified, the producing party need only produce documents as ordinarily maintained or in a “reasonably usable form.”  In Perea v. Conner, No. Civ.-13-0697 KG/LAM (D. N.M. September 26, 2014), relying in large part on Rule 34, the court refused to order the plaintiff to produce a word processing document containing pain journal entries because the plaintiff had already produced a .pdf copy of the journal.  The court also refused to order production because the defendant failed to specifically request the original electronic copy of the pain journal and did not ask for its related metadata.  The court noted that under Fed. R. Civ. Proc. 34(b), if a party requesting documents does not specify the format in which the documents are to be produced, they need only be produced in one, reasonably usable form.  The court stated that the .pdf copy of the pain journal satisfied the requirements of Rule 34 and that the defendant had not shown that the copy plaintiff produced was incomplete or inaccurate.

Posted on October 6, 2014 in Court Rules, E-Discovery, Electronically Stored Information (ESI), FRCP

About the Author

Chad Main is an attorney and the founder of Percipient. Prior to founding Percipient, Chad worked as a litigator in Los Angeles and Chicago. He is a member of the Seventh Circuit Electronic Discovery Pilot Program Committee and may be reached at cmain@percipient.co.