Mason v. OSR Open Systems, Inc., 052417 NHSUP, 218-CR-2016-CV-1294

Docket Nº:218-CR-2016-CV-1294
Opinion Judge:Richard B. McNamara, Presiding Justice
Party Name:W. Anthony Mason v. OSR Open Systems, Inc., Daniel D. Root and Peter J. Viscarola
Case Date:May 24, 2017
Court:Superior Court of New Hampshire

W. Anthony Mason


OSR Open Systems, Inc., Daniel D. Root and Peter J. Viscarola

No. 218-CR-2016-CV-1294

Superior Court of New Hampshire, Merrimack

May 24, 2017



Richard B. McNamara, Presiding Justice

Plaintiff W. Anthony Mason ("Mason") has brought an action against OSR Open System Resources, Inc. ("OSR"), Daniel D. Root ("Root") and Peter G. Viscarola ("Viscarola") alleging that he was been an owner-employee of OSR for 22 years of the Company's 23 years of existence, and that he was wrongfully terminated by the Defendants.1 Discovery has begun, and both parties believe that much of the discovery will be produced as electronically stored information ("ESI"). Plaintiff has filed a Motion requiring production of all ESI in Native Format2. Defendants have objected, and moved for a protective order under Superior Court Rule 29 (a), alleging that production in Native

Format is unduly burdensome and seeking that they be permitted to produce all electronic discovery in TIFF[3] or TIFF+4 format. The Court held evidentiary hearings at which experts for both parties testified as to the need for a Native Format production and whether such a production is unduly burdensome. After considering the evidence and briefing, the Court orders that the Defendants shall produce all ESI in TIFF+ format, and need not produce the ESI requested in Native Format.


The principles governing production of ESI are set forth in Superior Court Rule 25. Under the Rule, parties have a duty to meet and confer about preservation of ESI promptly after litigation begins. Superior Court Rule 25 (a). A request for ESI must describe with reasonable particularity each item or category of items to be produced, and state the format in which the production is to be made. Superior Court Rule 25 (e). Requests for ESI must be made in proportion to the significance of the issues in dispute. Superior Court Rule 25(c) provides that if the request for ESI is considered to be out of proportion to the issues in the dispute, at the request of the responding party, the court may determine the responsibility for the reasonable cost of producing such ESI. The Comments to the Rule note that it is similar to Federal Rule of Civil Procedure 34.

The Defendants believe they should produce the ESI requested in a TIFF+ format. They assert that production in Native Format will require twice the expense of a TIFF+ production, because of the necessity of reviewing metadata for privileged documents. Defendants also argue that production of documents in Native Format could result in manipulation, because the documents are "live documents" and therefore subject to modification.

Plaintiffs insist that Native Format is the usual manner of production, and that their review of ESI will be limited unless such a production is made. They deny that production in Native Format will result in an increased expense to Defendants, and that the issue of document modification is not an issue, because they propose that the Defendants make a separate TIFF production, which cannot be altered. The law concerning production of ESI is growing rapidly throughout the United States, and is still relatively undeveloped in this State. Because there is little State law governing production of ESI, the parties cite federal cases and texts extensively. Both sides refer to federal law and to the Sedona Principles, Best Practices Recommendations and Principles for Electronic Document Production, (2nd ed. 2007) (Public Comment Version March, 2017) (Hereafter "Sedona Principles 2nd or 3rdEdition") to support their positions.


Plaintiff first argues that Rule 25(e), like Federal Rule of Civil Procedure 34 (b) (1) (C) allows a plaintiff to specify the format in which production should be made. Morgan Hill Concerned Parents Association v. California Department of Education, 2017 U.S. Dist. LEXIS 14983 (E.D. Cal. Feb. 1, 2017) *9. But the fact that a requesting party may specify the format does not mean that the producing party must necessarily comply with the format request. Rule 25(f) specifically provides that a party may object to a request for ESI. As Defendants note, there is ample authority for the proposition that a court will deny a Native Production request if a party shows that the production would be unduly burdensome. See, e.g.In re Porsche Cars of N. Am., Inc. Plastic Tubes Product Liability Litigation, 279 F.R.D. 447, 449-450 (S.D.Ohio 2012). Thus, the Court must consider the merits of the parties' positions.


Defendants' principal concern is that production in Native Format in this case will lead to disclosure of metadata. An electronic document or file usually includes not only the visible information but also hidden text, formatting codes, formulaic and other information associated with the file. These types of ancillary information are all called metadata; but there are important distinctions between different types of metadata. Application metadata is created as a function of the application software used to create the document or file. Common application metadata instructs the computer how to display the document (for example, the proper fonts, spacing, size and color). Other application metadata may reflect modifications in the document, such as prior edits or editorial comments. This information is embedded in the file it describes and moves with the file when it is moved or copied. Sedona Principles (2nd ed. 2007) p. 185.

System metadata reflects information related by the user or by the...

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