In Babakhanov v. Ahuja, No. 23-cv-2785 (LJL), 2023 WL 6977394 (S.D.N.Y. Oct. 23, 2023), the complaint alleged Defendants engaged in “systemic waste, fraud and abuse” in their operation of a medical organization purchased by Plaintiffs. The organization’s billing practices were under Medicaid audit, and Plaintiffs sought damages claiming the financial statements “failed to conform to generally accepted accounting principles.” 

Defendants brought a motion to compel, seeking production of Electronic Medical Records (EMRs) in native format—records Plaintiffs had already produced in PDF format. Defendants argued native format was needed to access: (1) chart template functions; (2) identity of all individuals involved with the charts; (3) attachments and documents stored within the EMRs; (4) full medication records and history of patients, and disclosures to the Office of Inspector General (OIG); and (5) all patient medical records for the universe of patients.

Plaintiffs noted that Defendants had not initially requested production of ESI in native format and cited the provision in Fed. R. Civ. P. 34(b)(2)(E)(iii) that “[a] party need not produce the same electronically stored information in more than one form.” Furthermore, Plaintiffs argued that PDFs are considered a “reasonably usable form,” and the organization keeps PDF records in its ordinary course of business. PDFs are routinely produced to insurance carriers and government agencies. Plaintiffs countered Defendants’ “need” for native records, explaining: (1) native templates are modified case by case; (2) the PDFs contain signatures of the providers; (3) attachments and other documents stored within the EMRs were produced; (4) records produced included full medication records and history; and (5) documents produced to the OIG were in PDF format.

The court denied Defendants’ motion, finding Plaintiff satisfied the procedures applicable for production of ESI under Fed. R. Civ. P. 34(b)(2)(E): “The [c]ourt is convinced that requiring Defendants to reproduce the EMR in native format would impose an undue burden on Plaintiffs far exceeding any value or potential relevance records in that format would have for this litigation.” The court noted that Defendants knew the form in which the records were kept and if they wanted native format they should have “asked for such records up front.”

A key takeaway here is that litigants should take advantage of the opportunity to specify the format of documents they are requesting up front, in accordance with Fed. R. Civ. P. 34(b)(1)(C). Otherwise, the opposing party can choose the format it wishes to produce, provided it is “reasonably usable” in conformance with Fed. R. Civ. P. 34(b)(2)(E)(ii). More information on the case, and commentary from Reed Smith’s David Cohen, can be found in the Exterro Case Law Alert here.