November 2007
Ask, Or You Shall Not Receive: Rule 34(b) and the Form of Production
Rule 34(b) of the Federal Rules of Civil Procedure has long provided the producing party the option of organizing documents produced to correspond to the requests to which they are responsive, or producing the documents as they are kept in the usual course of business.” As part of the 2006 amendments to the federal rules addressing electronically stored information (ESI), Rule 34(b) was revised to allow the requesting party to “specify the form or forms in which electronically stored information is to be produced.” Id. The responding party is not obligated to comply, but can object to the requested form and state the form that it elects to use. Id.
Two interesting questions about the application of the amended rule are answered in MGP Ingredients, Inc. v. Mars, Inc., 2007 U.S. Dist. LEXIS 76853 (D. Kan. Oct. 15, 2007), two directlyand one indirectly. The court answered directly the questions whether the “usual course of business” format is appropriate for ESI, and whether a party that has elected to produce documents as they are kept in the usual course of business should be required to also correlate the documents to correspond to the plaintiff’s requests. The court indirectly answered an important question about what the “usual course of business” means with respect to ESI.
The underlying litigation involved claims of patent infringement, misappropriation of trade secrets, tortious interference, and breach of contract. In the course of discovery, the defendants produced nearly 30,000 pages of documents with their Rule 26(a) disclosures, and, in response to plaintiff’s written discovery, another 18,000 pages of documents, all of which were produced “as they were kept in the usual course of business.” Id. at *2-4. Specifically, paper records were imaged and put on CD with document break information. ESI was also imaged into single-page TIFF images and put on CD together with a load file containing document break information. All of the documents were organized by custodian, and the defendants provided an index identifying the custodian for each range of Bates numbers. Id. at *3-6. The plaintiff complained that it was faced with the burden of identifying which documents in the 48,000 page production were responsive to each of its twenty-eight requests for production, and moved the court to compel the defendants to do so. The court declined.
First, the court noted that the Advisory Committee Notes to the amended Rule 34 make very clear that the “requirement that a party produce documents as they are kept in the usual course of business or organize and label them to correspond with the categories in the requests applies equally to ESI. Id. at *13 n. 12 (emphasis in original). Second, the court held that the provision in Rule 34(b)(i), giving the producing party the choice of the two alternate production methods identified in the rule. Thus, when a party chooses to produce “documents in the order in which they are kept in the usual course of business, the Rule imposes no duty to organize and label the documents, provide an index of the documents produced, or correlate the documents to the particular request to which they are responsive.” Id. at *10. The court also pointed out that the plaintiff had failed to either attempt to negotiate a different production method, or move the court for relief, both actions contemplated by the rule. Although acknowledging that the plaintiff had a formidable task in organizing the documents, it noted that “Plaintiff was the party who formulated the requests in the manner it did and Plaintiff must take responsibility for undertaking the task of determining which documents relate to each set of its twenty-some requests.” Id. at *12.
In the course of directly answering the questions presented, the court also indirectly answered another question: just what does “usual course of business” mean with respect to ESI. Many commentators and practitioners have assumed that this refers to the format in which the ESI is maintained, which would virtually always be in native format. In other words, Microsoft Word documents would have to be produced as Microsoft Word documents, since that is the format in which they are kept. Although not reaching this particular issue, the court implicitly accepted the production of ESI, including e-mail messages, in TIFF images as “usual course of business” because of the way they were organized in the production rather than the format in which they were produced. The significance of this may be short-lived, as the precise question was never presented to the court, but, given the degree of security provided by TIFF and other image formats over native production, this decision may provide some assurance for companies that elect to produce ESI in imaged formats.
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