[EDRM Editor’s Note: The opinions and positions are those of the author.]

The court in Alex v. City of Ann Arbor, 2026 WL 1383768 (E.D. Mich. May 18, 2026), rejected plaintiffs’ assertion that they had asked for documents in native form and also rejected their assertion that production of responsive “junk” was improper.

The City of Ann Arbor had denied employees’ requested religious exemptions from its mandatory vaccination policy during the COVID-19 pandemic. They sued. Due to the high volume of discovery disputes, the court appointed a retired Magistrate Judge as a discovery master. This decision is on objections to the master’s decisions.

THE DISCOVERY MASTER’S DECISION

The court set the stage, writing:

Plaintiffs argued that the City’s production in .PDF format was not compatible with their counsel’s document review platform, and they wanted the documents produced in another format¹ at no cost to them. Plaintiffs also contended that the City included junk documents with the production (e.g., newsletters from third parties advertising deals for laptops and vacations).

The discovery master held that the production was in accord with Fed.R.Civ.P. 34(e) and the parties’ discovery plan. The master held “that Plaintiffs failed to show that the ‘junk’ documents were not in fact responsive to their RFP…..” She also noted that production began in March 2024 and plaintiffs did not raise objections until February 2025.

THE NATIVE FORM ISSUE

Plaintiffs “claim that the parties’ discovery plan allowed them to request documents in their original or native format, and that they did just that, but the City refused to produce documents in native format unless Plaintiffs paid significant costs.”

However, the court disagreed, writing: “As [the discovery master] correctly found, Plaintiffs’ RFP did not request documents in their original or native format, even if the discovery plan enabled them to do so.” The court continued:

In fact, the word “native” appears nowhere in the RFP, and the word “original” appears only in the definition of “Document” to include copies differing from the original…. The language from the RFP that Plaintiffs quote to show that they asked for documents in their native or original format did not do so…. Instead, it simply instructed the City to not engage in a “document dump,” and to “categorize the documents and identify which discovery requests documents are responsive to for [sic] all documents produced.”

The City made four productions, “electing to produce documents as searchable, bookmarked PDFs compatible with Adobe, which was in accordance with the agreed upon protocol. Even if the bookmarked PDF did not work with Plaintiffs document review platform, they acknowledge that the City’s first and fourth document productions are organized using embedded bookmarks correlating to the relevant document requests.”

PRODUCTION OF “JUNK”

Plaintiffs complained of the production of “junk” documents, such as newsletters from third parties advertising deals for laptops and vacations. “According to Plaintiffs, [the discovery master] failed to address their complaints concerning thousands of blank pages with deleted or missing information, including thousands of blank images in emails and pages with no content which were included in the City’s production.”

The Alexa court rejected plaintiffs’ argument, writing:

[Plaintiffs] fail to show that the documents were not responsive to the RFPs. The documents produced in response to Plaintiffs’ broad requests may in fact be irrelevant; however, Plaintiffs must show that they are not responsive to what was requested. For example, a request for “all documents, communications, and ESI from any custodian who may be identified on [the City’s] Witness List … that contain the word ‘COVID’ any time since August 1, 2021” …—notably, at time when the world was responding to the COVID-19 pandemic—was likely to generate a response containing thousands of irrelevant documents. However, that is the result of how Plaintiffs formulated the request, not how the City responded to them. [emphasis added].

The objections were overruled. The court also addressed privilege issues, including an argument of waiver by untimely logging, and other issues. The court applied the “legal right” test to text messages on BYOD cell phones.

On the issue of “document correlation” under Rule 34(b)(2)(E), please see:

• Does Rule 34(b)(2)(E)(i) Mandate “Document Correlation” When ESI is Produced and, If So, Does Metadata Provide a “Work-Around” to Avoid the Costs of That Correlation Process? (Jul. 20, 2021);
• Document Correlation Under Fed.R.Civ.P. 34(b)(2)(E) (Jul. 29, 2025);
• Document Correlation (Nov. 5, 2025).

On the issue of possession, custody, and control and the “legal right” test, please see:

• Isn’t It Time for a Uniform National Standard on “Possession, Custody, or Control”? (Sep. 7, 2022);
• Possession, Custody, or Control – Need for a Uniform National Standard – Part II (Feb. 18, 2026).

On the issue of “junk,” please see An Epilog: 4 Things You Never Wanted to Hear + 8 Lessons & a Dispute Over Revealing Recipients of Litigation Hold Notices, All in One Case (May 10, 2024)(“Plaintiffs requested this language and thus Plaintiffs cannot be heard to complain later about receiving a large volume of system or junk files (and should not be expected to argue for extensions of the case or discovery schedule on this basis). By arguing for this language, Plaintiffs knowingly undertook the risk that they may receive a large volume of system or junk files as a result.”); 4 Things You Never Wanted to Hear + 8 Lessons & a Dispute Over Revealing Recipients of Litigation Hold Notices, All in One Case (May 4, 2024).

Notes

1. The Federal Rules of Civil Procedure use the term “form” or “forms,” not “format.” ↩︎

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