Davenport v. Charter Communications, LLC

Filing 334

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants' motion to compel is DENIED. (Doc. No. 329.) Signed by District Judge Audrey G. Fleissig on March 20, 2015. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

PENNY DAVENPORT, et al.,
Plaintiffs,
v.
CHARTER COMMUNICATIONS, LLC,
Defendant.

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Case No. 4:12CV0007 AGF

MEMORANDUM AND ORDER
This action for unpaid overtime wages is before the Court on Plaintiffs’ combined
motion (Doc. No. 326) to compel production of documents in pipe delimited text format or
“Excel” format. Plaintiffs filed their first amended complaint as a collective action under
the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., on August 7, 2012.
Approximately 800 current and former employees of Defendant Charter Communications,
LLC have now joined this action as opt-in Plaintiffs. For the reasons stated below, the
Court will deny Plaintiffs’ motion to compel.
BACKGROUND
Four named Plaintiffs brought this action on their own behalf and on behalf of
similarly situated call center employees who worked on an hourly basis at Charter.
Plaintiffs claim that Charter violated the FLSA, 29 U.S.C. § 207, and various state wage
and hours laws, by failing to pay them for the time it took them to access computer
applications when beginning to work and to close down computer applications at the end of
work.

On March 27, 2014, the Court conditionally certified Plaintiffs’ collective FLSA
action to provide notice to putative plaintiffs and give them the opportunity to opt-in.
Prior to the Court’s conditional certification, 13 Plaintiffs filed written consents to join the
suit. By the time the opt-in period closed on September 22, 2014, approximately 800
Plaintiffs opted in and joined the FLSA collective action.
As part of their revised joint scheduling plan, the parties stipulated to a discovery
plan, which provided, in pertinent part:
The parties will preserve and disclose electronically-stored information
(“ESI”), pursuant to the requirements Fed. R. Civ. P. 26. To the extent there
is any discovery concerning ESI, the parties may disclose/produce ESI in
hardcopy or static form (e.g. .pdf or .TIF), thereby allowing documents
produced to be indexed and individually marked through “Bates” stamping.
Consistent with the Federal Rule of Civil Procedure 34(b)(iii), the parties
presumptively need not produce the same ESI in more than one form;
however, after the production of ESI in a hardcopy or static form, the parties
may request disclosure of metadata or native files for particular documents
where good cause has been demonstrated, e.g. where the original creation
date of a document is at issue and disputed, or when a static image is not
reasonably usable, e.g. when a .pdf image is unable to capture/display all
column/information contained in a spreadsheet such as an Excel file.
(Doc. No. 84 at 1-2.)
On October 6, 2014, Plaintiffs served their Third Request for Production of
Documents, seeking, in relevant part, “[a]ll time clock records for all Plaintiffs during the
Class Period.” (Doc. No. 326-1 at 4.) On November 10, 2014, Plaintiffs’ counsel asked
Defendant’s counsel to produce the requested documents in a “computer-readable” format.
On December 10, 2014, Defendant produced two disks which contained time records of
Plaintiffs in searchable PDF file format.

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Defendant asserts, and Plaintiffs do not dispute, that Defendant produced similar
time clock records for the original 13 opt-in Plaintiffs in searchable PDF format, and that
Plaintiffs did not object to the format of production at that time. Plaintiffs now seek to
compel Defendant to produce Plaintiffs’ time records in a pipe delimited text format,
“Excel” format, or other format that is computer-readable, sortable, exportable, and able to
be manipulated. Plaintiffs argue that the current PDF format, though searchable, does not
allow them to sort and group the time records, forcing them to manually re-enter clock-in
and clock-out times for each individual Plaintiff in order to determine the amount of
overtime for which each was allegedly not compensated. Plaintiffs further contend that
the parties have previously stipulated that after receiving electronic discovery in static
form, a party may, for “good cause,” request the same data in a native format. Plaintiffs
argue that this is such a situation and that the great time and difficulty which would be
associated with manually sorting and re-entering all of the time records is sufficient good
cause to warrant Plaintiffs’ request here.
Defendant first responds by noting that Plaintiffs’ request for production did not
specify the format in which responsive documents should be produced, and that, therefore,
Rule 34(b)(2)(E)(ii) permitted Defendant to produce searchable PDF files, as that format is
the default output for such documents in Defendant’s systems. Defendant emphasizes
that it previously produced the same type of documents in this format, without any
objection from Plaintiffs. Defendant further argues that searchable PDF is a reasonably
usable format, and that as it has already produced the documents in that format, Rule
34(b)(2)(E)(iii) states that it need not produce them again in a different format. Finally,
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Defendant notes that, because it does not ordinarily maintain the time clock records in
Excel or pipe delimited text format in the regular course of business, preparing the files in
Excel format would require 40 to 50 hours of manual data entry and cost approximately
$1,500. Defendant requests that, should it be required to reproduce the time records in
Excel format, Plaintiffs bear this cost.
DISCUSSION
Federal Rule of Civil Procedure 37(a) allows a party to “move for an order
compelling disclosure or discovery.” Fed. R. Civ. P. 37(a)(1). “Unless otherwise
stipulated or ordered by the court,” when producing electronically stored information, “a
party must produce it in a form or forms in which it is ordinarily maintained or in a
reasonably usable form or forms,” unless the request specifies a different form. Fed. R.
Civ. P. 34(b)(2)(E).
Here, it is undisputed that Defendant has produced the requested information. The
time records were produced in a searchable PDF format, which is the format in which
Defendant previously produced these type of records without objection, and which
Defendant contends is the default format for its systems. It is further undisputed that
Plaintiffs’ initial request did not specify a format for the time records. Indeed, it appears
that over a month elapsed between the time Plaintiffs served their request for production
and the time they first stated their preference for a “computer readable format.”
Lacking a specific request to the contrary, courts regularly find searchable PDF
documents to constitute a reasonably usable form. See Lutzeier v. Citigroup, Inc., No.
4:14–cv–00183–RLW, 2015 WL 430196, at *8 (E.D. Mo. Feb. 2, 2015) (holding that a
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defendant’s production complied with Rule 34 because the PDF files were searchable);
Autotech Techs. Ltd. P’ship v. Automationdirect.com, Inc., 248 F.R.D. 556, 559 (N.D. Ill.
2008) (finding a PDF document to be in a reasonably usable form under Rule 34, when the
request for production did not specify).
Plaintiffs contend that the discovery plan stipulated to by the parties in this action
specifically contemplated situations such as this one, and allows for a party to request data
be produced again in its native format. However, after reviewing the relevant portion of
the discovery plan, the Court finds it inapplicable to this case. The joint proposed
scheduling plan allows for a party to request the disclosure, in native format, of
information already produced, “where good cause has been demonstrated.” (Doc. No. 84
at 2.) The plan then lists several examples of good cause, including cases in which the
creation date of a document is disputed, or when a static image is not usable because the
PDF image is “unable to capture/display all column/information contained in a spreadsheet
such as an Excel file.” Id.
These examples are of situations in which certain data or metadata is not adequately
captured by a PDF file, a circumstance absent in this case. Plaintiffs are not disputing the
veracity of the time records, nor do they allege that there is information truncated or lost in
a PDF that would be available in an Excel format. Rather, Plaintiffs want to be able to sort
and categorize the data Defendant provided with greater ease than they are able to
currently. Such difficulties would have been a good reason for Plaintiffs to specify a
particular format in their request for production, but are not sufficient “good cause” to
force Defendant to reformat and produce data which it has already provided. See AKH
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Co., v. Universal Underwriters Ins. Co., 300 F.R.D. 684, 689-90 (D. Kan. 2014) (denying a
motion to compel where the documents had already been produced in PDF form, the
plaintiff’s only complaints were that the files were difficult to search and organize, and
producing the documents again would be costly); Entm’t USA, Inc. v. Moorehead
Commc’ns, Inc., Cause No. 1:12–CV–116, 2013 WL 5308108, at *1 (N.D. Ind. Sept. 20,
2013) (denying a motion to compel a party to resubmit documents in Excel format which
had already been produced in searchable PDF format, as the PDF was already reasonably
usable). This is particularly true where, as here, Plaintiffs previously accepted the very
same type of records from Defendant in searchable PDF format without objection.
Should Plaintiffs wish to obtain the data in a computer readable format, they must
reimburse Defendant for its reasonable costs.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendants’ motion to compel is DENIED.
(Doc. No. 329.)

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 20th day of March, 2015.

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