In FSP Stallion 1, LLC, et. al. v. Luce, et. al., (2009 WL 2177107 (D. Nev. July 21, 2009), U.S. Magistrate Judge Peggy A. Leen granted plaintiffs' request for defendants to produce certain accounting information in its native format and further ordered defendants to produce electronically stored information ("ESI") with limited metadata fields.

Plaintiffs sought accounting data from over a 9-year period in its native format and the production of metadata associated with electronic documents such as emails. The parties met and conferred but were unable to reach agreement with regard to form of production.  Defendants argued that they should not have to reproduce documents produced in their initial disclosures in a native format or with metadata and the court agreed noting that plaintiffs' initial disclosure documents were also static images.  The court, however, disagreed that defendants' production would be unduly burdensome under FRCP 26(b)(2)(B).

The court, citing Rule 34, ordered defendants to produce 4 years of accounting data in its native format and required defendants to produce ESI as a static image with limited metadata with the exception of privileged documents that could be scanned and produced.