UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION, )

Plaintiff, )

)

v. ) CAUSE NO.: 2:13-CV-245-RLM-PRC

)

SVT, LLC d/b/a ULTRA FOODS, )

Defendant. )

OPINION AND ORDER

This matter is before the Court on the EEOC’s Motion to Compel Agreed-Upon Format of

SVT’s Discovery Responses [DE 61] and the EEOC’s Motion for Leave to File Documents Under

Seal [DE 65], both filed by Plaintiff Equal Employment Opportunity Commission (“EEOC”) on

February 20, 2014. Defendant SVT, LLC d/b/a Ultra Foods (“SVT”) filed a response on March 17,

2014, and the EEOC filed a reply on April 2, 2014.

1. Legal Standard

Federal Rule of Civil Procedure 34(b)(1)(C) provides that a party requesting production of

electronically stored information (“ESI”) “may specify the form or forms in which electronically

stored information is to be produced.” Fed. R. Civ. P. 34(b)(1)(C). In addition, Rule 34 sets out

procedures to be used for producing ESI: 

(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.

Fed. R. Civ. P. 34(b)(2)(E)(ii).
Federal Rule of Civil Procedure 26 provides for specific limitations on ESI:

A party need not provide discovery of electronically stored information from sources

that the party identifies as not reasonably accessible because of undue burden or cost.

On motion to compel discovery or for a protective order, the party from whom

discovery is sought must show that the information is not reasonably accessible

because of undue burden or cost. If that showing is made, the court may nonetheless

order discovery from such sources if the requesting party shows good cause,

considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for

the discovery.

Fed. R. Civ. P. 26(b)(2)(B).

2. Background

In the Complaint, the EEOC alleges that SVT, a retail grocer, refused to hire a class of

qualified applicants for available night stocker positions because of the applicants’ sex (female) and

disproportionately hired more males than females, despite receiving applications from qualified

females during times that SVT filled available night stocker positions. SVT denies the allegations.

The EEOC seeks backpay and prejudgment interest on behalf of the class. 

In an August 20, 2013 written correspondence, the EEOC provided SVT with instructions

for SVT’s production of ESI, titled the “Concordance Load File Specifications,” requesting that (1)

documents be produced in near native .Tiff format and (2) spreadsheets and databases be produced

in native format. Initially, SVT communicated that it could comply with these format requests. The

EEOC served its First Request for Production on September 30, 2013, referencing the August 20,

2013 correspondence and the Concordance Load File Specifications. The EEOC’s Request for

Production sought applications, screening assessments, interview guides, spreadsheets containing

data about applicants and employees, and pay rate information. The parties do not dispute that the

ESI sought by the EEOC and at issue in this motion is relevant under Federal Rule of Civil

Procedure 26.

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On January 16, 2014, SVT began serving discovery responses. SVT produced spreadsheets

in .Tiff format, which was not the native format. SVT produced employment applications in singlepage, non-unitized .pdf and .Tiff format without a load file. In those responses, SVT averred that

“[a]ll relevant data has been provided pursuant to industry standards.” (Pl. Br., Ex. 3, Cert. ¶ 3). At

no time prior to the production of documents on January 16, 2014, did SVT discuss with the EEOC

any concerns with producing responsive information in the format designated by the EEOC in the

August 20, 2013 correspondence and the Concordance Load File Specifications.

3. The EEOC’s Concerns with the January 16, 2014 ESI Production

The EEOC immediately identified problems with the format of SVT’s ESI production as

non-compliant with its August 20, 2013 communication and the Concordance Load File

Specifications. Timothy Wojtusik, the EEOC’s Litigation Support Manager, explains in his

Declaration the deficiencies in SVT’s ESI productions in native as well as non-native formats.

As for the documents produced in native format, Mr. Wojtusik identifies three deficiencies:

(1) SVT produced spreadsheet and/or database files, including ESI from Kronos

and FMS, as printed images; 

(2) SVT did not produce these files in the requested native format as specified

by ¶ 8 of the agreed to Concordance Load File Specifications attached to the

August 20, 2013 correspondence; 

(3) in the format produced, the files are unusable because they cannot be

searched or manipulated for analysis.

(Pl. Br., Wojtusik Decl.).

Wojtusik explains that the production of ESI in native format, such as spreadsheets and

database data, is not unduly burdensome to the user as asserted by SVT. He represents that he is

familiar with both the Kronos and FMS systems and knows that both are capable of providing users

with data in many forms and come with built-in functionality to query, export, and report data from

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databases. He further represents that it is relatively easy to export data from either vendor’s systems.

He states that it is not unduly burdensome for SVT to query its system for applicants, hires,

applications, interview data, and payroll data maintained on these systems as ESI and to provide the

data requested in its native format. 

As for the documents produced by SVT in near-native format, Mr. Wojtusik explains that

these documents, such as policies, handbooks, and contracts, were “bulk scanned” with no

unitization or load files for any type of e-discovery system and in formats that do not meet the

EEOC’s production specifications in the August 20, 2013 correspondence. Mr. Wojtusik identifies

several deficiencies with this “near-native” production: 

(1) SVT produced single-page files in either .pdf or .Tiff format. The scans are

not logically unitized, which the EEOC had advised it would not accept in

the August 20, 2013 correspondence.

(2) SVT did not include a Concordance load file, which establishes the proper

document breaks and maintains parent/child relationships, which was

required in the August 20, 2013 correspondence.

(3) SVT’s production stripped the ESI of the necessary document/page

relationships and renders them unusable.

(4) The printed images and single page .pdf or .Tiff files are not ESI in the forms

in which SVT ordinarily maintains such data and files. In fact, SVT

converted the data to a less usable format than the original data.

Id.

The EEOC uses Concordance e-Discovery software, which is one of the industry standard

platforms, for review of all discovery. Mr. Wojtusik explains that SVT has produced documents

contained, in some instances, on DVD-Rs and, in other instances, in e-mail attachments on six

separate occasions. Some of SVT’s production consists of applications stored on SVT’s third party

vendor, Kronos, Inc.’s, system, which have been bulk-scanned to single page .pdf or .Tiff files with

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no unitization or load files for any type of e-discovery system and in formats that do not meet the

EEOC’s production specifications set out in the August 20, 2013 correspondence. In other instances,

the scanned documents appear to be image screen shots of data stored on SVT’s third party vendor,

Financial Management Systems, Inc.’s (“FMS”), systems. 

4. Analysis

The EEOC began communicating with SVT regarding its concerns with the ESI production

on January 17, 2014. In one of the last communications, on February 10, 2014, the EEOC

summarized its ongoing concern that “SVT’s form of production is not reasonably usable because

documents produced this way have been stripped of their necessary metadata and cannot be

searched, sorted, filtered, or otherwise manipulated.” (Exh. 24). The EEOC also stated that “[a]

person would have to manually unitize the documents and create the load file, a process our IT

professionals know from experience is not required for Kronos applications.” Id. This issue remains

the primary ongoing dispute. As for the EEOC’s concern regarding spreadsheets produced in .Tiff

format as opposed to native format, SVT has produced the spreadsheets in native format during the

course of briefing this motion, satisfying the EEOC’s concern.

First, pursuant to Rule 34(b)(1)(C), the EEOC is entitled to have SVT produce the data in

the format specified, which is native format for spreadsheets and databases and near-native (.Tiff

or .pdf) format for documents. See Fed. R. Civ. P. 34(b)(1)(C). SVT does not contest that .Tiff

format “is a widely used and supported graphic file format for storing bit-mapped images, with many

different compression formats and resolutions.” Race Tire America, Inc. v. Hoosier Racing Tire

Corp., 674 F.3d 158, 161 n.2 (3d Cir. 2012) (quoting The Sedona Conference, The Sedona

Conference Glossary, E-Discovery & Digital Information Management 50 (Sherry B. Harris et al.

eds., 3d ed. 2010)). A load file “indicates where individual pages or files belong together as

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documents, to include attachments, and where each document begins and ends.” The Sedona

Conference Glossary, 31. Without load files, there is no way “to ensure transfer of accurate and

usable images and data.” Id.

SVT produced the .Tiff files requested by the EEOC without the load file, which the EEOC

also requested. The EEOC contends that, without the load file, SVT’s ESI production is not

reasonably usable and continues to unnecessarily consume Commission resources and time spent

attempting to make sense of SVT’s discovery production. Also, the EEOC contends that SVT’s

production in .pdf format is not a reasonable alternative because the documents are bulk-scanned

and not logically unitized. Moreover, .pdf format is neither the format in which SVT normally keeps

these records nor the format designated by the EEOC.

The EEOC notes that two of SVT’s designated human resources representatives, Jessica Hon

and Rich Bugajski, testified during recent depositions about their experience working with Kronos.

Hon testified that she can generate reports using Kronos in either Excel or .pdf format, including a

report of applicants for night crew stocker positions at the facility at issue in this litigation. Bugajski

testified that FMS can export reports to Excel. Both testified that Kronos users can sort applications

by assessment score and can obtain additional internal Kronos data relevant to the hiring decision

by hovering the mouse over the applicant’s name. So, in one sense, the data is readily accessible for

use. Yet, it is not clear to the Court how this information that is searchable by an end user can be

produced by SVT in the searchable format sought by the EEOC. SVT states broadly and without

evidentiary support that it does not have the necessary programs or equipment to comply with the

EEOC’s request to produce documents in near-native format. 

Second, the EEOC argues that the documents are in the “control” of SVT within the meaning

of Rule 34, even though the data is housed with Kronos and FMS, because SVT has a right to obtain

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a copy of the documents. The Court agrees. See United States v. Approximately $7,400 in U.S.

Currency, 274 F.R.D. 646, 647 (E.D. Wis. 2011) (“[F]ederal courts have consistently held that

documents are deemed to be within the ‘possession, custody or control’ for purposes of Rule 34 if

the party has actual possession, custody or control, or has the legal right to obtain the documents on

demand.” (quoting Walls v. Paulson, 250 F.R.D. 48, 50 (D.D.C. 2008) (citing In re Bankers Trust

Co., 61 F.3d 465, 469 (6th Cir. 1995); Kifle v. Parks & History Ass’n, No. Civ. A. 98–00048, 1998

WL 1109117, at *1 (D.D.C. Oct. 15, 1998))).

SVT explains that, like many other retail grocers, it utilizes a third party hiring program

tailored to its business that allows applicants to apply online for positions at its stores. The applicant

enters his or her own application data, answers questions, and, in some cases, uploads documents

into the Kronos system. The applicant can choose one or more positions that are, or may become,

available at a particular store or stores. This data is then “stored” by Kronos. Designated “hiring

personnel” from SVT can log into the Kronos system to view individual applications and associated

materials. SVT represents that the applications can be printed by SVT in a .pdf formatted document

for later use. SVT represents that the actual “raw data” is not accessible and savable by SVT but

rather, that it can only obtain a .pdf document. SVT says that it can “sift” through information

contained within the Kronos web-based program, such as initiating a search within certain time

parameters (e.g. retrieving applications filed during the last 7 days or for a certain position). 

The EEOC contends that SVT is able to use or manipulate the data in the Kronos databases

not only to select applicants for interview and hire but also to produce reports by position and

employee name, detailing past and future pay rates. In contrast, in a January 28, 2014

correspondence, counsel for SVT stated that “neither SVT nor our office has the ability to convert

large scale documents from the medium they are kept in the normal course of business, and/or has

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been provided by third parties, without undue burden or expense.” (Exh. 15). Counsel for SVT went

on to request: “To the extent that you have information that you or members of your staff have that

would change the situation, please send me something in writing.” Id. On January 29, 2014, counsel

for SVT wrote that, although it had agreed to produce ESI in the format requested by the EEOC in

the August 20, 2013 letter, “the scope of the EEOC’s request, not known at the time the parties met

to coordinate ESI production, cannot be met in the format that the EEOC has requested.” (Ex. 17).

This is at odds with the statements of Mr. Wojtusik regarding the accessibility of the data.

Third, SVT argues that this ESI is not “reasonably accessible because of undue burden or

cost,” arguing that the EEOC knew that SVT could not produce data in the form sought by the

EEOC without seeking, and paying, for the data from third parties. The Court finds that SVT has

not met its burden under Rule 26(b)(2)(B) of showing that the records are not reasonably accessible.

SVT argues that it has already expended significant resources providing ESI to the EEOC and will

incur additional costs if ordered to produce the ESI in the specified format. SVT represents that it

produced much of this information to the EEOC in 2011 during the EEOC’s pre-suit investigation,

consisting of approximately 1600 applications in .pdf readable files. SVT states that the first round

of applications resulted in a $2,400.00 charge to SVT from Kronos. SVT also represents that the

EEOC’s subsequent discovery requests during this litigation for data that is hosted and maintained

by Kronos resulted in charges of $400 and $6,000 in January 2014 to retrieve the expanded

application data requested. SVT says that Kronos advised SVT on March 13, 2014, that the

additional data extraction that would be responsive to the EEOC’s request for production subject to

this motion to compel would require 117 hours of time at a cost of $23,900.00. Finally, SVT

represents that it was invoiced $8,175 for “EEOC Lawsuit Reporting” from FMS for 54 hours of

work to provide data in the “CVS” format. 

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Although SVT has incurred costs in responding to this discovery request and may expend

additional resources to comply with the EEOC’s discovery request, SVT erred by not objecting or

seeking a protective order in advance of its January 16, 2014 production based on its purported

inability to comply with the EEOC’s ESI specifications. “A party that responds to a discovery

request by simply producing electronically stored information in a form of its choice, without

identifying that form in advance of the production in the response required by Rule 34(b), runs a risk

that the requesting party can show that the produced form is not reasonably usable and that it is

entitled to production of some or all of the information in an additional form.” Fed. R. Civ. P. 34

(2006 advisory committee notes). The EEOC specified the format for ESI in the August 20, 2013

communication. At the parties’ planning conference, SVT’s IT professional indicated that SVT

could provide discovery in the EEOC’s designated format. Although SVT reserved its right to object

when submitting the parties’ joint planning report, SVT chose to make its objections after producing

the documents in a format other than that designated by the EEOC. SVT offers no explanation for

this delay. Notably, on three occasions, SVT requested extensions of time to respond to the

discovery requests and never indicated its intent to object. If SVT had made its objections in a timely

manner, the parties either could have resolved this dispute or sought the assistance of the Court in

advance of SVT’s production.

The EEOC cites case law suggesting that conversion of ESI to the .Tiff format designated

by the Commissioner does not exceed standard copying rates. See Race Tire America, 674 F.3d at

162, 167 (noting that the party incurred an approximate per-page cost of $.05 to scan 430,733 pages

of documents and convert them to .Tiff format); Nobel Biocare USA, LLC v. Technique D’Usinage

Sinlab, Inc., No. 1:12-cv-730, 2013 WL 819911, at *5 (E.D. Va. Mar. 4, 2013) (paying

approximately $.07 per page for “TIFF productions” and “Native productions”).

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Based on the evidence and argument before the Court, the data is not inaccessible due to

undue burden or cost. Therefore, the Court need not address SVT’s argument that the EEOC should

bear some or all of the cost of production of ESI from its third-party vendors. See Zubulake v. UBS

Warburg, LLC, 216 F.R.D. 280, 284 (S.D.N.Y. 2003) (noting that cost-shifting is only potentially

appropriate when inaccessible data is sought).

In sum, the EEOC properly specified the form for producing ESI in its August 20, 2013

communication and Concordance Load File Specifications. The evidence before the Court supports

a finding that SVT should produce responsive ESI information in the format initially designated by

the EEOC so that the information is reasonably usable, i.e., fully searchable and manipulable, with

the connections between data fields intact. However, despite the extensive briefing and submissions

of exhibits, a precise resolution to this conflict is not readily apparent, and the parties are ordered,

as set forth in the next section to attempt to resolve this conflict through an in-person meet and

confer.

5. Court-ordered Meet and Confer 

To date, all of the parties’ efforts to resolve this dispute have been in writing. There was no

face-to-face conference with IT support staff, and there was no exchange of technical documents

between parties’ IT support staff. Through the attorneys’ written correspondence, SVT asked the

EEOC for alternatives and/or written information that would assist SVT in addressing this dispute.

SVT sought information on how to obtain the data from its third-party vendors in a form acceptable

to the EEOC without incurring more cost and how to deliver the materials in the Concordance load

file format when SVT did not have the capability to do so, either by possession of software or

experienced personnel. In response, the EEOC insisted on an in-person meeting without additional

written documentation from its IT personnel and based solely on the August 20, 2013

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communication. The Court finds that, subsequent to the January 16, 2014 production, the EEOC was

not reasonable in its refusal to provide the requested specific written communication by its IT

personnel to SVT in advance of an in-person meet and confer. With the guidance of the Court’s

findings in this Opinion, the parties can likely resolve this dispute without further Court involvement

if the EEOC first provides SVT with specific written instructions from its IT personnel and the

parties then engage in an in-person meet and confer with the attorneys for both parties, the IT

personnel for both parties, and personnel from the third party vendors, if necessary.

The Court is mindful of the apparent inequality of resources available to the parties in this

case, the excessive costs that can be incurred in producing ESI, and that such costs can become so

burdensome as to pressure a party to settle in order to avoid those costs. In ordering the EEOC to

provide written instructions from its IT personnel and by requiring the parties to engage in an inperson meet and confer with the IT personnel present, the Court is not shifting the dollar cost of

production to the EEOC, yet the Court expects the EEOC to be mindful of these cost considerations

and to assist SVT, through the assistance of the EEOC’s IT personnel, in finding a cost-effective

resolution to this conflict. Broad statements made by Mr. Wojtusik in his Affidavit regarding the

production of non-native ESI in .Tiff format as a “straightforward process” that “is in no way

burdensome to the user” suggests that Mr. Wojtusik is uniquely qualified to provide this technical

direction to SVT, its IT staff, and its attorneys.

SVT represents that it has already produced much of the requested ESI during the course of

the EEOC’s pre-suit investigation. In its reply brief, the EEOC contends that information obtained

during the EEOC’s investigation was not certified by counsel as required of discovery responses by

Federal Rule of Civil Procedure 26(g), and SVT is under no obligation to supplement its

investigation-stage responses. The EEOC thus contends that the requested discovery is neither

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cumulative nor duplicative of prior discovery. Nevertheless, in light of the considerations in this

specific litigation, at the meet and confer, the parties shall determine whether they can agree upon

a way for the ESI produced by SVT during the EEOC’s investigation to constitute a response to the

pending discovery request.

SVT offered to make a computer terminal connected to the Kronos system available to the

EEOC for the EEOC to run searches with the parameters it seeks. The EEOC rejects this offer as

inadequate because the EEOC would incur travel costs to get appropriate personnel to SVT’s

computer and because, without coordination with Kronos and SVT, the Commission has no

assurance that it would obtain the data it seeks in the format designated. In contrast, SVT suggests

that this access would allow the EEOC to examine and review all applications, uploaded documents,

and hiring statuses, and, additionally, would allow the EEOC to run its own reports. At the meet and

confer, the parties shall consider whether this offer by SVT should be part of the parties’ resolution

of the instant conflict if the necessary coordination can be arranged.

Finally, the EEOC asks the Court for leave to file under seal Exhibits 4, 5, and 6, which are 

a native-format spreadsheet produced as a printed image, a document showing how SVT can

manipulate application data, and an example of documents showing that SVT can search for and

manipulate payroll data, respectively. The EEOC submitted these documents under seal pursuant

to the parties’ Stipulated Protective Order. Having reviewed the documents, the Court finds that,

because the documents contain sensitive personnel information of non-parties, the legal and factual

criteria for maintaining the documents under seal are met.

Based on the foregoing, the Court GRANTS the EEOC’s Motion for Leave to File

Documents Under Seal [DE 65], TAKES UNDER ADVISEMENT the EEOC’s Motion to Compel

Agreed-Upon Format of SVT’s Discovery Responses [DE 61], and ORDERS:

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(1) the EEOC to provide SVT on or before April 24, 2014, with a written communication

from the EEOC’s internal forensic computer expert, Mr. Wojtusik or another similarly qualified

individual, setting forth the remaining specific deficiencies with SVT’s January 16, 2014 ESI

production and proposing a specific and detailed explanation of the method for obtaining and

delivering the information in a cost-efficient manner for SVT;

(2) the EEOC and SVT to meet and confer in person, on or before May 9, 2014, with their

respective IT personnel as well as personnel from third party vendors Kronos and FMS, if necessary,

to resolve this conflict, which includes considering the written communication that will be produced

by the EEOC’s internal forensic computer expert, considering whether the prior production of ESI

in the course of the EEOC’s pre-suit investigation with the proper attorney certification could satisfy

portions of the instant discovery dispute, and considering whether making a computer terminal

available for the EEOC to conduct its own searches is a viable option; and

(3) the parties to file a joint status report on or before May 16, 2014, indicating the date and

location of the meet and confer, listing who was present at the meet and confer, attaching as an

exhibit a copy of the written communication from the EEOC’s internal forensic computer expert,

and summarizing the results of the meet and confer, including whether the instant Motion to Compel

can be denied as moot by the Court and, if not, detailing the issues discussed and the basis for not

resolving the dispute.

So ORDERED this 10th day of April, 2014.

s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATES DISTRICT COURT

cc: All counsel of record

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