State of Louisiana and the Vermilion Parish School Board v. the Louisiana Land & Exploration Co.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

17-755

THE STATE OF LOUISIANA AND
THE VERMILION PARISH SCHOOL BOARD

VERSUS

LOUISIANA LAND & EXPLORATION COMPANY, ET AL.

**********

ON APPLICATION FOR SUPERVISORY WRITS FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 82162
HONORABLE JEROME M. WINSBERG, PRESIDING AD HOC

**********

SHANNON J. GREMILLION
JUDGE

**********

Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and D. Kent Savoie,
Judges.

WRIT DENIED.

Donald T. Carmouche
Victor L. Marcello
John H. Carmouche
William R. Coenen, III
Brian T. Carmouche
Todd J. Wimberley
Ross J. Donnes
D. Adele Owen
Leah C. Poole
Caroline H. Martin
Christopher D. Martin
Talbot, Carmouche & Marcello
17405 Perkins Road
Baton Rouge, LA 70810
(225) 400-9991
COUNSEL FOR PLAINTIFFS/RESPONDENTS:
State of Louisiana
Vermilion Parish School Board

Jerold Edward Knoll
The Knoll Law Firm, L.L.C.
233 South Main St.
Marksville, LA 71351
(318) 253-6200
COUNSEL FOR PLAINTIFFS/RESPONDENTS:
State of Louisiana
Vermilion Parish School Board

Grady J. Abraham
Attorney at Law
5040 Ambassador Caffery Parkway, Suite 200
Lafayette, LA 70502
(337) 234-4523
COUNSEL FOR PLAINTIFFS/RESPONDENTS:
State of Louisiana
Vermilion Parish School Board

Calvin E. Woodruff, Jr.
Attorney at Law
220 South Jefferson Street
Abbeville, LA 70511
(337) 898-5777
COUNSEL FOR PLAINTIFFS/RESPONDENTS:
State of Louisiana
Vermilion Parish School Board

Michael R. Phillips
Claire E. Juneau
Jeffrey J. Gelpi
Kean Miller LLP
909 Poydras Street, Suite 3600
New Orleans, LA 70112
(504) 585-3050
COUNSEL FOR DEFENDANT/APPLICANT:
Union Oil Company of California

L. Victor Gregoire
Alan J. Berteau
Kean Miller LLP
400 Convention Street, Suite 700
Baton Rouge, LA 70802
(225) 387-0999
COUNSEL FOR DEFENDANT/APPLICANT:
Union Oil Company of California

Robert E. Meadows
Carol M. Wood
Andrew M. Stakelum
King & Spaulding LLP
1100 Louisiana, Suite 4000
Houston, TX 77002
(713) 751-3200
COUNSEL FOR DEFENDANT/APPLICANT:
Union Oil Company of California

GREMILLION, Judge.

The defendant-applicant, Union Oil Company of California (UNOCAL),

seeks supervisory writs from the trial court’s judgment denying its motion to

compel discovery. For the following reasons, we deny the writ and affirm the trial

court’s ruling.

FACTUAL AND PROCEDURAL BACKGROUND
This case involves an oilfield contamination lawsuit that is governed by

2006 La. Acts No. 312, which enacted La.R.S. 30:29. The plaintiffs, the State of

Louisiana (State) and the Vermilion Parish School Board (VPSB), filed suit against

UNOCAL and other defendants, alleging that property owned by the State and

managed by VPSB was damaged as a result of fifty-five years of oil and gas

exploration activities. The plaintiffs’ private law claims were tried by a jury in

April and May 2015. The jury found UNOCAL liable for environmental damage

but found no liability on the part of the other defendants.

In accordance with the provisions of Act 312, in August 2015, the trial court

signed an order referring the case to the Louisiana Department of Natural

Resources, Office of Conservation (LDNR) to develop a feasible plan for the

remediation of the environmental damage on the plaintiffs’ property. After

conducting a two-week hearing, the LDNR issued a feasible remediation plan,

which was subsequently adopted by the trial court. The judgment adopting the

LDNR’s plan is currently the subject of an appeal lodged with this court on

September 13, 2017, docket number 17-830.

After the judgment was rendered regarding the remediation plan, the

plaintiffs sought entry of a judgment on the jury’s verdict regarding their private

law claims. At a hearing held on April 11, 2017, the trial court denied the

plaintiffs’ request for the court to sign a “partial final judgment” on their private

law claims. The trial court ruled that it would not sign a “final judgment” on the

private law claims until after it ruled on the plaintiffs’ claims for costs and attorney

fees. Instead, on April 26, 2017, the trial court signed a “partial judgment” on the

jury’s verdict, dismissing various claims and theories of recovery against

UNOCAL and its co-defendants and holding UNOCAL strictly liable to the

plaintiffs in the amount of $1,500,000.00 for restoration of property damage. That

judgment also reserves the plaintiffs’ claims for costs and attorney fees. The

plaintiffs state that their claims for costs and attorney fees will require extensive

discovery and a three-day trial.

In May 2015, after the jury had rendered its verdict, the plaintiffs and

UNOCAL each filed a motion for JNOV and new trial. After the trial court signed

the judgment of April 26, 2017, the plaintiffs and UNOCAL re-urged their motions

for JNOV and new trial. The trial court declined to rule on the motions for JNOV

and new trial until after a hearing regarding the plaintiffs’ motion for costs and

attorney fees was held. The plaintiffs sought supervisory review of the trial court’s

decision to delay the hearing.

On July 25, 2017, this court granted the applicants’ writ:

WRIT GRANTED AND MADE PEREMPTORY.
The trial court abused its discretion in deciding to conduct a hearing
on attorney fees and costs before a final determination on the pending
motions for a new trial and JNOV. We hereby vacate the trial court’s
rulings of April 11, 2017, April 26, 2017, and May 8, 2017. Judicial
economy requires a determination on ultimate liability before the
assessment of attorney fees and costs. Further, La.Code Civ.P. art.
2551 mandates that theses summary proceedings should be
“conducted with rapidity.” We remand this case and order the trial
court to conduct a hearing on the pending motions for a new trial and
JNOV within forty-five (45) days of the finality of this Order.

We grant the relators’ [plaintiffs’] Motion to File a Supplemental
Brief; we deny the Motion for Leave to File Amicus Curiae Brief filed
by the State of Louisiana, through the Office of Conservation.

2

On August 31, 2017, a hearing was held on the motions for new trial and

JNOV, the outcome of which is not known at this time. A hearing on attorney fees

and costs was to be conducted after the trial court ruled on the motions.

Meanwhile, in response to discovery requests related to the motion for costs

and attorney fees, VPSB, the plaintiff/respondent in the instant matter, produced

153 separate spreadsheets totaling 1,341 pages. UNOCAL complained, however,

that VPSB converted the spreadsheets into non-searchable, static image files.

Accordingly, UNOCAL filed a motion to compel production of the Microsoft

Excel spreadsheets in its original electronic form. The motion was taken up on

August 10, 2017, and subsequently denied. UNOCAL is now before this court on

writs, seeking review of the trial court’s ruling.

SUPERVISORY RELIEF
“The proper procedural vehicle to contest an interlocutory judgment that

does not cause irreparable harm is an application for supervisory writs. See La.

C.C.P. arts. 2087 and 2201.” Brown v. Sanders, 06-1171, p. 2 (La.App. 1 Cir.

3/23/07), 960 So.2d 931, 933. But see La.Code Civ.P. art. 2083, comment (b),

which provides “Irreparable injury continues to be an important (but not exclusive)

ingredient in an application for supervisory writs.”

ON THE MERITS

The issue herein is one of first impression regarding La.Code Civ.P. arts.

1461 and 1462 and the production of electronically stored information. Neither

party included a copy of the discovery request sent by UNOCAL to VPSB.

According to UNOCAL, the following requests for production were included in

the written discovery request:

3

Request for Production No. 2:
Produce any and all timesheets, time records, billing summaries, time
summaries, and/or any other record that documents the actual time
spent by any attorney, paralegal, or other legal paraprofessional for
any work performed in connection with this litigation as counsel for
Plaintiff or on behalf of counsel for Plaintiff.

Request for Production No. 3:
Produce all summaries, spreadsheets, calculations, or other documents
that support, substantiate, or identify the amount of attorneys’ fees for
which you seek reimbursement pursuant to Act 312.

Request for Production No. 4:
Produce all documents that verify, support, substantiate, or identify
the costs for which you seek reimbursement pursuant to Act 312.

Request for Production No. 18:
Produce all materials that support, relate to, or quantify any portion of
your claim to recover costs of any kind or fees of any kind from
UNOCAL or any other defendant in this case.

Before addressing the merits, UNOCAL discusses the concept of metadata,

which is found in the native format of electronically stored information (ESI) and

is not visible when a document is printed or converted to a static image file. Of

importance to UNOCAL is 1) substantive metadata used to create a document or

file, which reflects modifications to the document; 2) system metadata, which

improves the ability to efficiently access, search, and sort a large number of

documents; and 3) embedded metadata, which provides the ability to view the

formulas underlying the output in each cell. Additionally, although a static image

file of ESI is still searchable using optical character recognition software,

UNOCAL urges that the ability to search is limited to the ability of the software to

translate the static image file.

4

UNOCAL argues, first, that VPSB failed to produce the spreadsheets in the

form in which they are ordinarily maintained (Excel spreadsheets), in violation of

La.Code Civ.P. art. 1462. Louisiana Code of Civil Procedure article 1462(C)

reads:

A party who produces documents for inspection shall produce
them as they are kept in the usual course of business or shall organize
and label them to correspond with the categories of the request. If a
request does not specify the form or forms for producing information,
including electronically stored information, a responding party shall
produce the information in a form or forms in which it is ordinarily
maintained or in a form or forms that are reasonably usable. When
electronically stored information is produced, the responding party
shall identify the specific means for electronically accessing the
information.

UNOCAL also argues that VPSB failed to produce the spreadsheets in a

reasonably useable form as required by Article 1462. Since Louisiana courts have

not yet considered what constitutes “reasonably useable,” UNOCAL avers that this

court can rely on federal decisions involving analogous federal provisions as

persuasive authority as well as the advisory committee notes to Fed. R. Civ. P.

34. 1 See Hodges v. Southern Farm Bureau Cas. Ins. Co., 433 So.2d 125

(La.1983).

The rule does not require a party to produce electronically stored
information in the form it [sic] which it is ordinarily maintained, as
long as it is produced in a reasonably useable form. But the option to
produce in a reasonably useable form does not mean that a
responding party is free to convert electronically stored information
from the form in which it is ordinarily maintained to a different
form that makes it more difficult or burdensome for the requesting
party to use the information efficiently in the litigation. If the
responding party ordinarily maintains the information it is producing
in a way that makes it searchable by electronic means, the information
should not be produced in a form that removes or significantly
degrades this feature.

1
The comments to La.Code Civ.P. arts. 1461 and 1462 refer to the advisory committee
notes to the 2006 amendments to Fed. R. Civ. P. 34.

5

Fed. R. Civ. P. 34, Advisory Committee Notes, 2006 Amendment, Subdivision

(b)(emphasis added).

In the form in which the spreadsheets were produced, static image portable

document format (PDF) files, UNOCAL complains that VPSB impermissibly

removed the search capabilities of the Excel spreadsheets. UNOCAL cites Green

v. Monarch Recovery Management, Inc., 2014 WL 1631825 (S.D. Ind. 2014),

wherein the defendants, in response to the plaintiff’s motion to compel, provided

the plaintiff with a PDF version of an Excel spreadsheet which was 1000 pages

long. 2 The plaintiff complained that the PDF version 1) did not sufficiently

represent the original spreadsheet; 2) did not help identify a procedure adopted by

the defendants to avoid erroneous debt collection practices; and 3) did not clearly

demonstrate that the pages provided were from a spreadsheet sent from one

defendant to another. As such, the plaintiff requested an unredacted spreadsheet to

assess how the data was mixed. At the hearing on the motion, the defendants

argued that an unredacted spreadsheet would identify the names, addresses, and

social security numbers of 2,400 people, only one hundred of which were relevant

to the matter. Although the parties agreed to produce the electronically stored

material in paper or PDF format, the court found that the agreement was subject to

modification when the format to which they agreed materially altered the

usefulness or evidentiary value of the document. “One of the unique strengths of

Excel software is the ability to implement calculations and formulae that are not

evident in a PDF version, so merely a PDF imprint of the surface information is

not sufficient. Further, the ability to search the spreadsheet is essential to its

2
In their response to the plaintiff’s initial discovery requests (the spreadsheet was not the
requested discovery), the defendants referred to an Excel spreadsheet. The plaintiff subsequently
filed a motion to compel the Excel spreadsheet.
6

usefulness.” Id. at *3. The motion to compel was granted, and the defendants

were ordered to confidentially produce the entire unredacted spreadsheet.

In the instant case, UNOCAL complains that VPSB removed the search

capabilities, leaving UNOCAL with the burden of converting the static image PDF

files into a searchable text format using optical character recognition (OCR)

software. UNOCAL refers to the testimony of Michael Bandemer, a computer

forensics expert and the managing director of the electronic discovery and

computer forensics practice with Berkely Research Group. Mr. Bandemer testified

that errors occurred when he attempted to convert the PDF spreadsheets back into

an electronic, searchable form. As such, he must manually review the spreadsheets

and correct the errors. The burden, UNOCAL urges, makes little sense when

VPSB can readily produce the spreadsheets in the Excel format.

UNOCAL also complains that VPSB impermissibly removed the embedded

metadata, including formulae, from the spreadsheets. In Williams v. Sprint/United

Management Co., 230 F.R.D. 640 (D. Kan. 2005), the defendant was ordered to

disclose electronic documents, i.e. Excel spreadsheets, as they were maintained in

the ordinary course of business. Prior to producing the spreadsheets, the defendant

used software to scrub the files to remove the metadata and did not provide a log of

what information was scrubbed. The defendant reasoned that the metadata was

irrelevant and contained privileged information. Also, the plaintiffs never

requested that the metadata be included. The court subsequently ordered the

defendant to show cause why it should not be sanctioned for failing to comply with

the order. At the hearing, the defendant stated that the metadata was deleted to

prevent the plaintiffs from recovering privileged and protected information and to

limit the information to the pools from which the defendant made the decisions that

were being litigated.
7

In its opinion, the court discussed in great detail the emerging standards of

electronic discovery with regard to metadata and whether the standards articulate a

presumption against the production of metadata as urged by the defendant. The

court initially looked to Fed. R. Civ. P. 34, finding insufficient guidance therein

and in the jurisprudence. It then focused on the Sedona Principles for Electronic

Document Production.

In light of the proposed amendment to Rule 34, which adds
“electronically stored information” as its own separate category, it is
no longer necessary to focus on what constitutes a “document.” With
regard to metadata in general, the Court looks to Principle 12 and
Comment 12.a. to the Sedona Principles. Based upon this Principle
and Comment, emerging standards of electronic discovery appear to
articulate a general presumption against the production of metadata,
but provide a clear caveat when the producing party is aware or
should be reasonably aware that particular metadata is relevant to the
dispute.

Based on these emerging standards, the Court holds that when a
party is ordered to produce electronic documents as they are
maintained in ordinary course of business, the producing party should
produce the electronic documents with their metadata intact, unless
that party timely objects to production of metadata, the parties agree
that the metadata should not be produced, or the producing party
requests a protective order. The initial burden with regard to the
disclosure of the metadata would therefore be placed on the party to
whom the request or order to produce is directed. The burden to
object to the disclosure of metadata is appropriately placed on the
party ordered to produce its electronic documents as they are
ordinarily maintained because that party already has access to the
metadata and is in the best position to determine whether producing it
is objectionable. Placing the burden on the producing party is further
supported by the fact that metadata is an inherent part of an electronic
document, and its removal ordinarily requires an affirmative act by
the producing party that alters the electronic document.

Id. at 652 (footnotes omitted). See also Dahl v. Bain Capital Partners, LLC, 655

F.Supp.2d 146 (D. Mass. 2009).

In the instant case, UNOCAL states that the ability to sort, filter, and

rearrange the information at issue—$23 million dollars in attorney fees for nearly

40,000 hours of time spent by at least sixteen different attorneys, paralegals, and

8

other legal staff—is crucial. Without the Excel spreadsheets, UNOCAL must

manually enter all 1,341 pages of spreadsheets.

Next, UNOCAL argues that VPSB failed to establish that production of the

Excel spreadsheets in native format is not reasonably accessible. UNOCAL asserts

that pursuant to Article 1462, the burden is on VPSB, the responding party, to

show that the electronically-stored information is not reasonably accessible due to

the burden or expense of producing same. Instead, UNOCAL contends, VPSB

improperly shifts the burden to UNOCAL to establish a need for production of the

Excel spreadsheets in native format or relies on the unsubstantiated possibility that

the spreadsheets contain privileged information.

In opposition, VPSB argues that UNOCAL did not request a preferred

format for the production or request that the documents be produced in native

format. VPSB directs this court to the following excerpts from the discovery

requests:

Interrogatory No. 2:
Provide an itemized list of all attorneys’ fees for which you seek
reimbursement under Act 312. In your response, please include the
name of each person who performed the legal services, the date(s) on
which the legal services were performed, the amount of hours
actually expended performing the legal services, whether the legal
services were performed in the trial court or in the department, and
a description of the legal services sufficient to identify whether the
legal services attributed to producing that portion of the evidence that
directly relates to the establishment of environmental damage.
(emphasis added).

Request for Production No. 2:
Produce any and all timesheets, time records, billing summaries, time
summaries, and/or any other record that documents the actual time
spent by any attorney, paralegal, or other legal paraprofessional for any
work performed in connection with this litigation as counsel for
Plaintiff or on behalf of counsel for Plaintiff.

9

Additionally, VPSB points out that UNOCAL’s definition of “document”

includes the original or a copy of the information requested. In its timely response

to UNOCAL’s requests, VPSB produced the itemized lists in PDF format and

Bates-labeled TCM/Time:00001-01341. The first spreadsheet, VPSB explains,

identifies each person who worked on the case, the total time each person worked

on the case, the total time each person worked on broad categories of the litigation,

the total time spent on the broad categories, the hourly rate for each person, the

total fee for each person, and the total fee for all persons. VPSB contends that

everything UNOCAL requested is in the PDF charts in TCM/Time:00001-01341.

According to VPSB, UNOCAL did not seek its Excel spreadsheets until after it

received the charts, and by that time, the discovery deadline had expired. As such,

UNOCAL “had to resort to alternative and flimsy arguments to support its alleged

entitlement to the information.” VPSB suggests that UNOCAL, with its extensive

legal representation, has the resources to review the 1,341 pages produced by

VPSB to support its billable hours in this matter.

Next, VPSB argues that the Excel spreadsheets contain attorney work

product protected under La.Code Civ.P. art. 1424 and the trial court’s prior rulings.

Article 1424(A) reads:

The court shall not order the production or inspection of any
writing, or electronically stored information, obtained or prepared
by the adverse party, his attorney, surety, indemnitor, or agent in
anticipation of litigation or in preparation for trial unless satisfied
that denial of production or inspection will unfairly prejudice the
party seeking the production or inspection in preparing his claim or
defense or will cause him undue hardship or injustice. Except as
otherwise provided in Article 1425(E)(1), the court shall not order
the production or inspection of any part of the writing, or
electronically stored information, that reflects the mental
impressions, conclusions, opinions, or theories of an attorney.

VPSB asserts that the Excel spreadsheets include metadata which may reflect

conversations amongst its attorneys. VPSB maintains that at one time, the
10

spreadsheets contained the text of internal emails between VPSB counsel and are

of the highest sensitivity. This information, VPSB urges, is protected as attorney

work product, mental impressions, and trial strategy in anticipation of litigation.

VPSB adds that if it was required to produce the Excel spreadsheets, it would need

to hire a computer expert to remove privileged information.

Next, VPSB asserts that the trial court previously ruled that it was not

entitled to metadata. In 2010 and 2014, VPSB requested UNOCAL’s document

management system and metadata based on the belief that UNOCAL was

withholding documents on the eve of trial. UNOCAL opposed the 2010 request

and a continuance of trial. The trial court denied the discovery request but

continued the trial. According to VPSB, after trial was continued, UNOCAL

produced a trove of relevant documents which, in fact, had been withheld. In the

2014 motion to compel, UNOCAL and Chevron produced 110,000 pages after the

deadline elapsed for the plaintiffs’ expert reports. A goal, VPSB maintains, of the

motion to compel was to obtain access to the database to determine if additional

documents were missing; access was denied again. VPSB states that it is now

surprised that UNOCAL seeks access to electronic files, a request VPSB describes

as “beyond the pale.” VPSB urges that UNOCAL does not seek documents

created in the normal course of business but seeks metadata related to the mental

impressions, trial strategies, and attorney work product. VPSB concludes that the

trial court’s prior rulings prohibit access to metadata.

VPSB also argues that UNOCAL either failed or refused to produce its own

Excel spreadsheets and other electronic files. VPSB refers to and includes several

documents introduced at the hearing as examples of documents produced by

UNOCAL in PDF format which were produced from an underlying electronic or

native format document. Unlike UNOCAL, VPSB stresses that it specifically
11

asked for the production of the electronically stored version of UNOCAL’s

spreadsheets which was ignored by UNOCAL.

With regard to the lack of Louisiana jurisprudence regarding Article 1462

and whether PDF format complies, VPSB submits that the PDF format is so

common in civil discovery, the issue has not been litigated. VPSB adds that

federal jurisprudence interpreting the federal rule upon which Article 1462 is based

has also ordered the production of documents in PDF format and rejected motions

requesting production of ESI with metadata (when not requested). See In re

Priceline.com Inc. Securities Litigation, 233 F.R.D. 88 (D. Conn. 2005), and

Kentucky Speedway, LLC v. National Ass’n. of Stock Car Auto Racing, Inc., 2006

WL 5097354 (E.D. Kentucky 2006).

More specific to the facts at hand, VPSB cites 150 Nassau Assoc. LLC v. RC

Dolner LLC, 96 A.D.3d 676 (N.Y. 2012), wherein the defendant moved to compel

the production of certain income tax records and to impose discovery sanctions.

The motion was denied. On appeal, the court noted that 1) the documents

responsive to the defendant’s request had been produced multiple times, the final

time in a searchable PDF format; 2) the defendant did not request the documents in

the native file format until its reply on its own motion to compel; and 3) the

defendant admitted that the only benefit of the motion was for the defendant’s

convenience. Accordingly, the court concluded that the lower court’s denial of the

motion to compel the reproduction of the documents in their native format was not

an abuse of discretion.

VPSB also refer to Comment 12.b. of the Sedona Principles, which reads:

Comment 12.b. Ideally, the form or forms used for production of
ESI should be agreed upon early. Absent
agreement, ESI must be produced as ordinarily
maintained or in a form or forms reasonably
usable to the requesting party.
12

In amending Rule 34(b) in 2006 to accommodate the expanding use
and production of ESI, the Advisory Committee encouraged parties to
reach agreement on the various form or forms of production, given
that different types of data may serve different purposes and the
potential need for native format production and metadata may vary.
The default forms of production appropriate to paper discovery did
not always have direct equivalents in electronic discovery, but the
Rule 1 goals should be the same—to encourage forms of production
that would facilitate the orderly, efficient, and cost effective
production of ESI and which allow the requesting party to
meaningfully analyze, search, and display the produced electronic
data.

Absent agreement, ESI must be produced in the form in which it is
ordinarily maintained or in a form that is reasonably usable to the
requesting party. Typically, a requesting party does not need ESI
produced in its native format in order to access, cull, analyze, search,
and display the ESI. Indeed, the most common way to produce ESI for
more than a decade has been to create a static electronic image in
Tagged Image File Format (TIFF) or Adobe Portable Document
(PDF) file format, to place the extracted text from the document into a
text file, and to place the selected metadata and other non-apparent
data into one or more separate load files. This form is frequently
referred to as the production of “TIFF, Text and Load Files” or
“TIFF+”. With production in this format, the requesting party may
reassemble the components in a fashion compatible with a chosen
review platform, so that the produced data can be text-searched and
sorted or filtered based on available metadata fields.

Parties should not demand forms of production, including native files
and metadata fields, for which they have no practical use or that do
not materially aid in the discovery process. For example, it may be
excessive for a party to demand that ESI be produced in native format
when the evidence needed to prove the claims and defenses of the
parties is found on the face of the documents, and the information
contained in the text and load Files will allow the requesting party to
organize and search the documents. Indeed, even with technological
advances, in the majority of instances, TIFF+ is a “reasonably usable”
form of production for most purposes and types of ESI under Rule
34(b)(2)(E)(ii). Accordingly, requesting parties should avoid
demanding a form of production, such as all ESI to be produced in
native format, unless they have a demonstrably reasonable need for
that form of production and the necessary technology, skills, and
resources available to make reasonable use of and to protect the ESI.
Conversely, responding parties should not seek to produce ESI in a
form or forms that inhibit the ability of the requesting party to use
advanced technology reasonably required to access, cull, analyze,
search, and display the information. Finally, all sides should bear in
mind that both requests and responses to discovery are bounded by
Rule 26(g) obligations.
13

In sum, when selecting the form or forms of production of ESI—when
requesting production, when responding to requests for production,
when meeting and conferring under Rule 26(f)(3), and when
participating in Rule 16(b) scheduling conferences—parties and the
court should consider: (a) the forms most likely to provide the
information needed to establish the relevant facts related to the
parties’ claims and defenses; (b) the need to receive ESI in particular
formats in order to functionally access, cull, analyze, search, and
display the information produced; (c) whether the information sought
is reasonably accessible in the forms requested; (d) the relative value,
and potential challenges created, by responding with ESI in the
requested format(s); and (e) the requesting party’s own ability to
effectively manage, reasonably use, and protect the information in the
forms requested.

The Sedona Conference, The Sedona Principles, Third Edition: Best Practices,

Recommendations & Principles for Addressing Electronic Document Production,

88-90, 2017.3

VPSB urges that its counsel spent a considerable amount of time, effort, and

resources to review thirteen years of complex litigation to create the requested

spreadsheets, which contain the exact information requested in Interrogatory No. 2.

Further, VPSB maintains, the spreadsheets were produced in PDF format, because

the format omits metadata that potentially contains privileged or confidential

information of the attorneys who created the spreadsheets. According to VPSB,

the spreadsheets are also searchable and cannot be easily altered or changed.

VPSB adds that the Bates label feature facilitates the use of the spreadsheets in

depositions, hearings, and at trial. Additionally, VPSB avers that the qualities

UNOCAL complains are lacking are the same qualities that make the PDF format

ubiquitous in litigation. UNOCAL seeks to manipulate the underlying information

in Excel spreadsheets in derogation of the Sedona Principles upon which it relies.

3
The publication may be downloaded - https://thesedonaconference.org/download-
pub/5120.
14

VPSB also contends that the jurisprudence cited by UNOCAL is

distinguishable and unpersuasive. Unlike the defendant in Williams, 230 F.R.D.

640, who was held to be in violation of a court order for failing to produce

electronic Excel spreadsheets, VPSB has not been ordered to produce same, and

the only outstanding request for information does not specify that the production

be done in Excel format. Further, the court in Williams found that the metadata

from the spreadsheets were relevant to the plaintiffs’ allegations. In the instant

case, VPSB maintains, UNOCAL has not articulated why the metadata are relevant

to the claims at issue.

In Green, 2014 WL 1631825, VPSB asserts, the issue being litigated—

claims under the Fair Debt Collection Practices Act—involved the process of, and

an error in, uploading accounts into Excel spreadsheets. The defendants claimed

that the incident involving the plaintiff was an isolated incident. The court found,

however, that the redacted spreadsheets in PDF format did not sufficiently

represent the original spreadsheet or identify that the procedure upon which they

relied was “‘reasonably adapted to avoid’ erroneous debt collection practices.” Id.

at *3.

In reply, UNOCAL argues that the trial court committed obvious legal error

in denying the motion to compel. First, UNOCAL contends that its broad

definition of “document”—original or copy of original―in its discovery requests

enlarges the scope of responsive documents. There is no dispute, UNOCAL urges,

that the Excel spreadsheets are responsive documents, and that the definition of

document has nothing to do with the form for production. Second, UNOCAL

contends that VPSB’s argument ignores Article 1462, in that it neither produced

the spreadsheets in the form in which they are ordinarily maintained nor in a

reasonably usable form. Further, UNOCAL avers, the fact that it did not
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specifically request production in native format is irrelevant, because when no

form is specified, the responding party must indicate in its response the form it

intends to use. In this case, UNOCAL argues, VPSB simply produced the

spreadsheets in the form of its choice with no advance notice of the form as

required by Article 1462.

UNOCAL also argues that the trial court erred in denying the motion when

VPSB failed to produce the Excel spreadsheets in a reasonably usable form.

UNOCAL reiterates that VPSB removed the search capabilities, embedded

metadata, and the ability to sort, filter, and rearrange the information, making it

more difficult and burdensome for UNOCAL to efficiently use the information.

Lastly, UNOCAL urges that VPSB cannot rely on a vague, unsubstantiated

assertion of potential privilege. See Maldonado v. Kiewit Louisiana Co., 12-1868,

12-1869 (La.App. 1 Cir. 5/30/14), 152 So.3d 909, writ denied, 14-2246 (La.

1/16/15), 157 So.3d 1129. UNOCAL adds that it does not seek the disclosure of

legitimately privileged information or information for which the privilege has been

waived. Additionally, UNOCAL maintains that speculation about what the Excel

spreadsheets may contain is insufficient to show that a privilege applies, and even

if they did contain privileged information, VPSB failed to provide the most basic

information to substantiate the claim.

At the hearing, the trial court stated that it was trying to find a middle

ground:

Mr. Coenen [Plaintiffs’ counsel] did suggest that perhaps you could
better delineate the things that you want and the way you want it,
other than them exposing the Excel spreadsheet that they’ve created.
That’s number one. And that is that you make specific requests as to
how you would want this presented, Mr. Phillips [Defendants’
counsel], and see if there’s a proper response or one that you think is
acceptable as to how you could deal with it as a defense to what
they’re presenting. That’s number one. Number two, if you believe
that there’s anything in any of that information or in the information
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that’s been furnished here, Mr. Coenen, that you believe is privileged,
you’re going to have to identify it as to what you believe is privileged,
of course what it is, and why you believe it’s privileged. And if Mr.
Phillips doesn’t think that it should be excluded because of privilege,
then you’ll have to offer it to the Court to see why it should be
excluded from here as privileged information.

We find that UNOCAL incorrectly states that VPSB was required to notify

UNOCAL, in advance, as to what form it intended to produce a request. Instead,

Article 1462(C) simply states that, “when electronically stored information is

produced, the responding party shall identify the specific means for electronically

accessing the information.”

There is no dispute that UNOCAL did not specifically request that the

information be produced in Excel format. The dispute involves the issues of

whether any of the information requested is protected and whether the format in

which the information was produced is reasonably useable.

VPSB clearly argued that the Excel spreadsheets contain attorney work

product and that it took a significant amount of manpower and expense to create a

PDF document to include all the information requested by UNOCAL. As such, we

find that pursuant to the protection provided in Article 1424(A), the trial court did

not err or abuse its discretion in denying UNOCAL’s motion to compel the Excel

spreadsheets.

With regard to the usability of the PDF spreadsheets, while UNOCAL has

established that it may be burdensome to convert the static image PDF files into a

searchable text format, it is not clear how UNOCAL’s ability to manipulate the

information produced in an Excel format is necessary in its defense of VPSB’s

claim for costs and attorney fees. UNOCAL has not shown how or why the

information produced in a PDF format is not satisfactory or reasonably useable to

its defense. Accordingly, the trial court did not err or abuse its discretion in

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denying UNOCAL’s motion to compel. We find no error or abuse of discretion in

the trial court’s ruling.

WRIT DENIED.

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