In Sky Medical Supply, Inc. v. SCS Support Claim Services, Inc. et. al., Case No. 12-6383 (E.D. N.Y., Sept. 7, 2016), Plaintiff sued Defendants under the Federal Racketeering Influenced and Corrupt Organizations Act (RICO) for mail fraud as well as for common law fraud, aiding and abetting, unjust enrichment and tortious interference. During discovery, the parties exchanged extensive discovery requests, the responses to which parties on both sides deemed insufficient. As a result, Defendants filed various Motions to Compel Plaintiff to produce certain documents, and Plaintiff filed a Motion to Compel complete responses to interrogatories and certain document requests.
One of Defendants’ Motions to Compel was with respect to documents produced on two CD-ROMs. Defendants argued that the production was not “in a manner consistent with FRCP 34” because the CDs lacked reasonable means for Defendants to determine the relevance of the documents. Defendants complained that the electronic folders on the CDs were labeled with names and numbers but were not labeled to connect them with any of the document requests, nor did they correlate to the claim numbers on the damages spreadsheet showing Plaintiff’s alleged damages. Defendants conceded that they could inspect the documents on Plaintiff’s counsel’s hard drive, but they argued that in-person inspection would be overly burdensome because of the time expenditure for comparing over 200,000 documents to the claim numbers in the spreadsheet.
Plaintiff argued that the documents were available for inspection at its counsel’s office and Defendants could copy the files from there to a flash drive. Plaintiff also argued that the case management system was searchable by insurance claim number and other identifiers that would make it easy for Defendants to find the cases they want to inspect and ignore irrelevant documents.
The court found that the production met the requirements of FRCP 34(b). The Rules, said the court, did not require Plaintiff to organize its records to suit Defendants’ demands; FRCP 34(b)(2)(E) permits parties to either produce documents as they are kept in the ordinary course of business or categorized as the requesting party has done, but it does not require that they alter the records to categorize them. The court found that Defendants’ argument of burdensomeness was not supported by the record, as the documents had been made available for inspection and Defendants had not tried to inspect them, and therefore cannot know if it will be burdensome. The court denied the Motion with respect to the CDs.