Can Plaintiffs Produce ESI in the Usual Course of Business?
Producing relevant electronically stored information (ESI) and compelling discovery are common concepts in litigation. However, some litigants are still confused by ESI productions and FRCP 34(b)(2)(E)(i). The court clarified this issue in Guild Associates, Inc. v. Bio-Energy (Washington) LLC, (S.D. Ohio June 18, 2014).
The pertinent part of the case arose when Defendant argued that Plaintiff had not complied with its initial disclosure obligations. Specifically, Defendant asserted that there were numerous problems with the ESI that Guild had turned over, including “pages, which appear to be email attachments, with no Bates numbers, making them difficult to link with the affiliated email; out of order pages; email attachments which cannot be opened; documents labeled as confidential without apartment justification; and random production of documents with no classification by subject matter.” Defendant sought to support their arguments with FRCP 34(b)(2)(E)(i).
If we take a look at FRCP 34(b)(2)(E)(i), we see that it states:
(E) Producing the Documents or Electronically Stored Information. 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.
A plain reading of the full body of the text indicates that requested information can be presented as it is kept in the usual course of business or organized and labeled to correspond to categories in the request for production. First, the burden is placed on the producing party to show that the documents were of a form kept in the routine course of business. The court agreed that Plaintiff had met that burden. Second, there was no further duty to organize and label documents after producing plaintiff ESI in the usual course of business, which means that the plaintiffs performed their obligations in a legally sufficient manner. Defendant’s motion to compel was accordingly denied.