Residential Constructors, LLC v. Ace Prop. & Cas. Ins. Co., 2006 WL 1582122 (D. Nev. June 5, 2006)
In this insurance coverage case, defendant had earlier moved to compel the production of documents by plaintiff. Plaintiff responded that it had taken several months to gather the voluminous documents and review them for privileged materials, and finally made available "41 large-sized boxes" of documents for inspection. By agreement of the parties, the documents were digitally imaged and then burned to CD for production. Plaintiff represented that the documents were imaged in the same order as they existed in hard copy, and were numbered in continuous order as found in the boxes. However, plaintiff did not provide any table of contents or index for the imaged materials.
Defendant complained that, without a table of contents or index, the CDs were unreasonably difficult to use. It also argued that Plaintiff's inclusion of substantial quantities of irrelevant documents made it more difficult to find relevant material.
Plaintiff responded that because the documents were imaged and searchable by key word, the documents were actually more accessible than they would have been had they been produced as hard copy with a table of contents or index. It argued that the documents were compiled in the order and manner in which they were maintained in the usual course of business, and Rule 34(b) did not require it to organize and label the images to correspond with categories in defendant's request for production.
The court sided with defendant:
The Court disagrees that simply producing for inspection 41 boxes of documents, or producing documents in a computer imaged format, complies with Plaintiff's obligation under Rule 34. Although Plaintiff alleges that the documents are organized in the manner in which they kept in the usual course of business, Plaintiff has gathered these documents together from different entities and locations and has assembled the documents together in the boxes, which have now been imaged onto a computer data base. Clearly some form of table of contents or index of the materials produced should be provided.
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The Court sees no legitimate reason why, in the course of assembling the documents together in the 41 boxes, Plaintiff did not or could not prepare a table of contents or index of what categories of documents were contained in different boxes, or groups of boxes or arranging to have such a table of contents or index prepared during the course of imaging the documents. Such a table of contents or index is reasonably necessary to determine, for example, from which entity or department the documents have been produced or the type of file in which they are contained. The Court, therefore, directs the Plaintiff to prepare and provide to Defendant a table of contents or index for the documents contained on CDs. In so doing, Plaintiff is not required to index each document in each file. Plaintiff, however, is required to identify the files it has produced and in which boxes or group of document numbers the files are located. Such table of contents or index shall be provided within thirty (30) days of the entry of this order.
The court went on to set a due date for the exchange of privilege logs, directed the plaintiff not to instruct non-party witnesses to not speak with defendants' representatives, and extended the discovery date cut-off and other pre-trial deadlines. It refused to award attorney's fees or costs related to this matter and denied defendant's motion to disqualify plaintiff's counsel.