In White v. Graceland College Center for Prof. Dev. & Lifelong Learning, Inc., 2008 WL 3271924 (D. Kan. Aug. 7, 2008), U.S. Magistrate Judge David Waxse held that defendants PDF/paper production was inadequate because defendants failed to produce emails in either the form in which they were ordinarily maintained, or in a “reasonably usable form” as required by Federal Rule of Civil Procedure 34(b)(2)(E)(ii).  Plaintiff had sought re-production of certain documents, mainly emails, that were converted to a PDF format and produced in paper.  Plaintiff contended that without the electronic and native copies of the documents, she would be unable to confirm or contradict that the documents were prepared at the time defendants allege they were prepared.

The court ruled defendants’ conversion of the emails and attachments to PDF documents and production of the PDF documents in paper format did not comply with the option to produce them in a reasonably usable form.  Judge Waxse, citing the advisory notes for the 2006 FRCP amendments, ruled that defendants’ option to produce in a reasonably usable form did not mean they were free to convert electronically stored information ("ESI") from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for plaintiff to use the information efficiently in litigation.   

The court noted that the discovery dispute could have been avoided altogether had the parties met and conferred at their Rule 26(f) conference regarding the production of ESI.  Accordingly, the court ordered defendants to re-produce approximately 25 documents in their native format.