A recent decision in a case relating to the sale of a medical practice provides a reminder of how important it is for a party to specify its preferred electronically stored information (ESI) production format in the discovery requests or the ESI protocol. Otherwise – so long as the ESI is produced in the form in which it is ordinarily maintained or in a usable form – the requesting party is not likely to be successful in compelling reproduction of the ESI in a different format. 

Our team routinely provides supported and defensible advice on ESI requests and protocols, including identifying the best ESI format for our clients’ litigation needs.

The plaintiffs in Babakhanov v. Ahuja, 23-cv-2785 (LJL), 2023 WL 6977394 (S.D.N.Y. Oct. 23, 2023) had bought a medical practice from the defendants. The plaintiffs subsequently sued the defendants, alleging that the defendants engaged in systematic waste, fraud, and abuse and that the New York State Office of the Medicaid Inspector General (OMIG) was in the process of reviewing the billing practices of the medical practice. The plaintiffs asserted that the medical practice’s financial statements failed to conform to generally accepted accounting practices, and that the defendants were liable for indemnification as well as for damages for alleged breach of express warranty and fraudulent inducement, among other things.

During discovery, the plaintiffs produced the medical practice’s patient charts from the electronic medical records (EMR) in PDF format. The defendants sought an inspection of the EMR in its native format, arguing they needed several types of information not available in the produced PDFs, including the identity of the persons who input data into the charts. 

In siding with the plaintiffs, the court cited Federal Rule of Civil Procedure 34(b)(2)(E), which specifies, in part, that unless a specific form for producing ESI is requested, a party must produce the ESI in the form in which it is ordinarily maintained or in a reasonably usable form, and that a party need not produce the same ESI in more than one form. The court found:

• the defendants did not specifically request that EMR be produced in native format;
• the plaintiffs produced the requested EMR in reasonably usable form;
• the PDF format was used in the ordinary course of business because this is the format in which EMR is normally produced to parties like insurance carriers or the OMIG; and
• the only information missing from the PDFs that was potentially relevant to the issues in the case was the identity of the person who input the data into the charts, but the PDF documents did identify the person signing the EMR.

In denying the defendants’ motion to compel, the court further noted that requiring the reproduction of the EMR in native format would impose an undue burden on the plaintiffs that significantly outweighed the value or potential relevance of any additional information that may be gleaned from the native records.