Is This Litigant Conflating the Dual Requirements of Federal Rule 34(b)(2)(E)?
In the patent case Ventura Corp. Ltd. et al., v. Barrett, Case No. 5:13-cv-03384-PSG (N.D.Cal. Oct. 16, 2014), pending before the court was a Motion to Compel filed by Barrett. The Motion alleged the plaintiff ESI production was unorganized and failed to be labeled to identify which documents were responsive to what requests. Barrett complained the 41,000 document production was done on flash drive and through email, and contained no custodial index or table, just the files themselves.
The Court looked to Federal Rule 34 and noted this rule is “about as basic to any civil case as it gets.” Rule 34 is designed to prevent a document dump, which is “at best inefficient and at worst a tactic to work over the requesting party.” Rule 34(b)(2)(E)(i) states a “party must produce documents as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the request.” Rule 34(b)(2)(E)(ii) states “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.”
It is important to distinguish Rule 34(b)(2)(E)(i) from (ii). Although the parties disagreed whether there was a consensus on form under (E)(ii), the court noted that even if there was an agreement on form, this has nothing to do with the party’s obligations under (E)(i). At a minimum, documents and electronic data sent in the usual course of business must include: the identity of the custodian from which the data was obtained, an indication whether they are retained in hard copy or digital format, assurance that the data is produced in the manner in which maintained, and a general description of the filing systems from which the data was recovered.
The Court found the production failed to comply with Rule 34(b)(2)(E)(i). It ordered Ventura to either organize and label each document or provide the information above regarding the usual course of business. It also ordered Ventura to produce load files for the production containing searchable text and metadata.