Federal Rule 34 Regarding ESI: What is the Correct Means of Document Production?
In an interim order by a magistrate judge dated June 28, 2013 in Kwasneiwski et al. v. Sanofi-Aventis US LLC, et al., 2:12-cv-00515-GMN-NJK (D. Nev. 2013), the defendants responded to plaintiff discovery requests by producing a large amount of documents and data that was not organized to match the requests. Plaintiffs objected to the format of the production, claiming the defendants failed to produce an index for the documents, failed to indicate which documents were responsive to which request and sought Bates stamping. The defendants responded by saying they produced information as kept in the “usual course of business,” thus fulfilling their discovery obligations.
The magistrate judge looked to the plain language of FRCP 34(b)(2)(E)(i) regarding electronically stored information (ESI) : “A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond with the categories in the request.” [Emphasis added.]
The court reviewed the defense production, and noted three things:
- The documents had a table of contents with a volumes, page numbers and cover sheets;
- Metadata was provided for all the documents, which allows plaintiffs to search by bates range, file path and document title;
- All but 33 documents were in text-searchable form.
The court ruled the defense production met the obligations required by FRCP 34 to produce documents in the usual course of business. However, the judge also ruled that the defendants failed to indicate which documents were responsive to each request, and ordered defendants to do so: “Plaintiffs should not have to guess which requests were responded to and which were not.”