Is failure to produce native email format sanctionable? E-Discovery methods and the issue with producing Gmail native files.
In Sexton v. Lecavalier, No. 13 Civ. 8557 (S.D.N.Y. April 22, 2014), the Plaintiff moved for contempt against a third-party witness for failure to produce native format Gmail email messages. In a separate action, the Plaintiff requested that the Arbitral Tribunal of the International Centre for Dispute Resolution issue a non-party subpoena to the Defendant in this action, requesting that it produce documents on a number of business entities. Specifically, the subpoena requested that electronic documents be produced in native format. Shortly thereafter, Defendant’s counsel produced eleven emails that had been forwarded to another individual from the Defendant’s Gmail account. The author of the emails certified that they were a true and correct copy of the emails originally sent to the Defendant. The Defendant admitted that the emails were not produced in native form.
The Plaintiff brought this action before the United District Court for the Southern District of New York to enforce the Arbitral Tribunal’s subpoena and for a contempt order. Two days after the Plaintiff filed the suit, the Court issued an order requiring the Defendant to appear at a hearing scheduled for the next week to explain why the Defendant should not have to comply with the subpoena. The Defendant did not appear at the hearing. Following their failure to appear, the Court ordered that the Defendant comply with the subpoena by producing the eleven emails in native format.
It was later learned that the Defendant was not able to electronically produce his emails, because Google Gmail is managed and controlled by Google, who does not permit electronic production. The tribunal ruled that as a result of the Defendant failing to appear at the hearing, it refused to consider this new information. Plaintiff moved the Court for contempt for failure to comply with the subpoena. In turn, the Defendant petitioned the Court for sanctions against the Plaintiff for filing the contempt motion.
I. Native Format
The parties, both the Plaintiff and Defendant, were at odds with the meaning of native format. The Defendant argued that native format meant producing a file in the format which the document was created. As such, the Defendant explained that Google does not permit its users to copy emails and produce them in a native format. On the other hand, the Plaintiff argued that for purposes of complying with the subpoena, there are only two types of files that should be considered native files: 1) where Gmail emails have been downloaded to an email client like Microsoft Outlook and then saved to a disk; and 2) Gmail emails that have been displayed in their “original format” and then saved as a PDF.
The Court focused its concern on maintaining the metadata contained in the files, because metadata has the ability to provide a significant amount of evidentiary data. Even if the Defendant could not have produced the email in its original format, as it claimed, the Court noted that there are other several e-discovery practices that better preserve the email’s properties and metadata. The Court gave several examples of ways to save Gmail messages while preserving the email’s properties, including, downloading the messages to Outlook and saving them as .eml or .msg files.
A Court has the authority to hold a party in contempt when the petitioning party establishes by clear and convincing evidence that non-complying party has violated the district court’s order. However, contempt should not be freely given and should be used as a last resort. A court can issue a contempt order when three elements have been satisfied: 1) there is a clear and unambiguous court order directing the party to act; 2) there is clear and convincing proof that the party failed to comply with the order; and 3) the party has not attempted to comply in a reasonably diligent manner.
The Court found that though the Defendant is a party to the current action, he was not a party to the original action, and, in fact, was sent a non-party subpoena for documents. Defendant produced what documents it had, and, in addition, sent Plaintiff’s counsel an email explaining that it could not produce the requested documents in native form. The Court admonished the parties for resorting to litigation of this matter. The Court explained that the Plaintiff could have communicated its request for a functionally native format instead of filing various motion documents with the Court. Likewise, the Defendant could have provided the files in the requested format at very little cost to them.
In all, the Court acknowledged that the Defendant’s production of the documents was made with the good faith belief that his Gmail emails could not be produced in a native format, and therefore, the Court found that there was doubt as to the wrongfulness of the Defendant’s conduct. As such, the Plaintiff’s contempt motion was denied.
The Court has inherent powers to impose sanctions. To do so the Court must find: 1) the challenged claim was without basis; and 2) the claim was brought in bad faith. The Court found that Plaintiff had a colorable claim against the Defendant, nor did the Plaintiff act in bad faith, and, as a result, the Defendant’s motion for sanctions was denied.