IN RE: PROFUNDITY LLC (2024)

ORDER GRANTING IN PART GULFGEN LLC'S MOTION TO COMPEL THE PRODUCTION OF DOCUMENTS IN ACCORDANCE WITH THE FEDERAL RULES OF CIVIL PROCEDURE

THIS MATTER came before the Court on April 25, 2024, on Gulfgen LLC's (“Gulfgen”) Motion to Compel the Production of Documents in Accordance with the Federal Rules of Civil Procedure [ECF No. 363] (the “Motion”). Having considered the Motion, the Declaration of Eugene Kesselman in Response to Gulfgen's Motion to Compel [ECF No. 383] (the “Declaration”) filed by Debtors Profundity LLC and Naboo Royal Cruiser LLC (the “Debtors”), the Amended Declaration [ECF No. 385], and arguments of counsel, the Court ORDERS as follows:

The Debtors’ productions at issue include documents scanned from physical files and documents that were maintained in electronic form, including emails. The Debtors did not produce native files or otherwise provide metadata relating to the documents which were collected from electronic files. The Debtors have produced all documents as Bates stamped PDFs. These productions include several large PDF files that contain multiple responsive documents and do not indicate where one document begins or ends. At the hearing, the Court was able to review portions of the Debtors’ production and the manner in which documents were produced.

The parties’ dispute raises two issues relating to the Debtors’ productions: (1) whether the Debtors must produce metadata and native files associated with the documents which were collected from electronic files; and (2) whether the Debtors must split the large PDFs containing multiple responsive documents into individual files for each responsive document.

Federal Rule of Civil Procedure 34(b)(2)(E), made applicable by Bankruptcy Rule of Bankruptcy Procedure 7034, provides as follows:

Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information: (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for 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; and (iii) A party need not produce the same electronically stored information in more than one form.

The Court reviewed the opinions issued by courts in this Circuit which have provided further guidance on the requirements of Rule 34. For example, in Teledyne Instruments, Inc. v. Cairns, the court explained that “[p]roduction ‘as kept in the ordinary course of business’ generally requires turning over electronic documents in the format in which they are kept on the user's hard drive or other storage device.” 2013 WL 5781274, at *9 (M.D. Fla. Oct. 25, 2013). “A file that is converted to another format solely for production, or for which the application metadata has been scrubbed or altered, is not produced as kept in the ordinary course of business.” Id. Therefore, files that are maintained in native format should be produced in native format, including the metadata. See also ADT LLC v. Vivint, Inc., 2017 WL 11632812, at *2 (S.D. Fla. Dec. 1, 2017) (ordering the defendant to “produce all emails previously produced in response to [plaintiff's request] in the form in which those emails are ordinarily maintained” even though the defendant argued that the plaintiff “did not request the metadata in its initial request for production”). The Court is persuaded that the Debtors’ method of producing electronic files was not in accordance with Rule 34. Based on the arguments at the hearing, these documents are the Debtors’ emails including attachments.

As to the second issue, the Court finds that the large PDFs produced by the Debtors were not produced as they are maintained in the ordinary course or organized and labeled to correspond to the categories in the request.

Accordingly, this Court GRANTS Gulfgen's request that electronic files be produced in native format, including metadata. For all documents in Debtors’ productions for which an electronic copy of the document is available (emails and attachments), the Debtors shall produce the native files to Gulfgen, including any relevant metadata, within 14 days of this Order. Additionally, the Debtors shall amend their initial response to Gulfgen's production requests to identify by specific bates stamp number(s) which of the produced documents are responsive to which specific production request within 14 days of the entry of this Order.

ORDERED in the Southern District of Florida on May 3, 2024.

Corali Lopez-Castro, United States Bankruptcy Judge