Electronic Discovery Law
Magistrate Judge Declines to Compel Plaintiff to Categorically Organize Documents that were Produced as Kept in the Usual Course of Business
Valeo Elec. Sys., Inc. v. Cleveland Die & Mfg. Co., 2009 WL 1803216 (E.D. Mich. June 17, 2009)
In response to defendant’s requests for production, plaintiff produced over 270,000 pages of emails and other electronically stored information (“ESI”) as they were kept in the usual course of business. Plaintiff also produced two indices which identified the custodian for each bates range, the location the file was stored, document titles and “re:” lines of emails, and additional information regarding the creation and storage of the information produced. Defendant argued that despite the information provided, it nonetheless had to open and review each file individually and alleged that plaintiff named the files “innocuously” in order to frustrate its review. Discussing the relevant burden to a party producing its files as maintained in the usual course of business, the court found plaintiff had satisfied its burden under Fed. R. Civ. P. 34 and the parties’ agreement and denied defendant’s motion to compel plaintiff to organize the data into 28 specific categories.
In its analysis of the issue, the magistrate first established a party’s ability to produce documents as maintained in the usual course of business under Fed. R. Civ. P. 34(b)(2)(E)(i) and then turned to the burden of that party to establish its compliance with the rule:
A party demonstrates that it has produced documents in the usual course by revealing information about where the documents were maintained, who maintained them, and whether the documents came from one single source or file or from multiple sources or files. See Nolan, LLC v. TDC Int'l Corp., No. 06-CV-14907-DT, 2007 WL 3408584, at *2 (E.D.Mich.2007) (Majzoub, Magistrate Judge). A party produces emails in the usual course when it arranges the responsive emails by custodian, in chronological order and with attachments, if any. MGP Ingredients, Inc. v. Mars, Inc., No. 06-2318-JWL-DJW, 2007 WL 3010343, at *2 (D.Kan.2007). For non-email ESI, a party must produce the files by custodian and by the file's location on the hard drive--directory, subdirectory, and file name. Id.
Citing plaintiff’s counsel’s demonstration of the organization and use of the indices at the hearing on the motion and the organization of the production itself, the court found that plaintiff’s counsel had established that the documents were produced in the way they were kept in the usual course of business, in compliance with the Federal Rules:
These two indices may be the nearest thing approaching a "magic decoder ring" and defense counsel may consider it of no more help than the Rosetta Stone leaving him and his associates hours of work ahead to comb through what was previously undecipherable hieroglyphics on the 15 discs. Nonetheless, all ESI documents produced are searchable in Adobe and/or other commercially available litigation search programs. Following Plaintiff's counsel's demonstration on June 17, it is determined that this production, including the supplemental Excel spreadsheets provided on June 17 satisfies Valeo's Rule 34 burden and the parties' agreement following the Rule 26(f) conference.
Accordingly Valeo has no duty to further organize or label the documents. Rule 34 and the relevant case law are quite clear: once a party demonstrates that it has produced documents as they are kept in the usual course of business, it has no further duty under Rule 34 or otherwise, absent some exceptional circumstances not present in this case, to organize and label the documents. Hagemeyer, 222 F.R.D. at 598 ("[A]ccording to the plain language of Rule 34, a responding party has no duty to organize and label the documents if it has produced them as they are kept in the usual course of business.").
To require more would impose an unfair burden on the producing party:
Requiring further that these requested materials be segregated according to the requests would impose a difficult and usually unnecessary additional burden on the producing party.... Such an undertaking would usually not serve any substantial purpose, and it could become quite burdensome if considerable numbers of documents were involved.
Wright & Miller, FEDERAL PRACTICE AND PROCEDURE § 2213 (2d 1994) (emphasis added). Worse, to insist that a party rename, or disassemble and reassemble its files before production would set a troublesome precedent, "invit[ing] claims of the very sort of 'hiding' of materials that gave rise to the 1980 amendment." See id.
*4 Only in "exceptional circumstances" have some courts compelled a producing party to further organize its documents. See 3M Co. v.. Kanbar, MK, No. C06-01225 JW, 2007 WL 1725448, at *2 (N.D.Cal.2007). A large volume of documents does not, without more, justify imposing additional organizational burdens on the producing party. Id. Here, Defendant has not demonstrated any exceptional circumstances warranting Plaintiff to produce anything further now that the supplemental Excel Index has been produced along with the earlier short table indicating the custodian and Bates number range.
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