Rule 34(b)(2)(E)(i) “Documents” Do Not Include ESI, Requirement to Produce in the Usual Course of Business or to Label to Correspond to Categories in the Request Does Not Apply

Anderson Living Trust v. WPX Energy Prod., LLC, —F.R.D.—, 2014 WL 930869 (D.N.M. Mar. 6, 2014)

In this case, the court analyzed the question of whether “a party must, under rule 34(b)(2)(E)(i) of the Federal Rules of Civil Procedure, arrange and label electronically stored information (‘ESI’) to correspond to the categories in the request, or whether compliance with rule 34(b)(2)(E)(ii)—production of ESI in the form that the requesting party requests, or in another reasonably usable form—is sufficient” and concluded that “the rule 34(b)(2)(E)(i) requirement that documents be produced either in the usual course of business or labeled to correspond to categories in the request does not apply to ESI.”  Thus, the court declined to order Defendants to arrange and label their production, including approximately 20,000 pages of hard copy documents which had already been scanned and produced in .PDF format at Plaintiff’s request.

In the course of discovery, the parties reached an agreement which required Defendants to scan certain hard copy documents “in the order they were maintained within each file” and to convert them to “fully searchable PDF files” for production.  Defendants complied with that agreement and also provided Plaintiffs with an index of the production.  Despite Defendants’ compliance, Plaintiffs sought to compel Defendants to arrange and label their production, which included approximately 20,000 pages of documents that had been scanned and converted.  Defendants argued that they “had done everything required of them under the Federal Rules of Civil Procedure. . . .”  Initially, the court was inclined to agree with Plaintiffs’ position and concluded that it would require Defendants to “indicate by Bates numbers the documents responsive to each request. . . .”  Upon Defendants’ Motion to Reconsider, however, the court concluded that no further production was appropriate:

After reviewing rule 34‘s text and legislative history, the Court concludes that the term “documents” in rule 34(b)(2)(E)(i) does not include ESI, and, thus, the rule 34(b)(2)(E)(i) requirement that documents be produced either in the usual course of business or labeled to correspond to categories in the request does not apply to ESI. Because rule 34(b)(2)(E) also allows parties to stipulate out of the default rules for production, the parties’ agreement to transmit hard copy documents in electronic form means that the production is governed by the rules applicable to ESI, under which the Defendants have met their obligations. The Court, therefore, grants the Motion to Reconsider.

(Emphasis added.)

In so concluding, the court reasoned, in part, that “[t]he drafters of 34(b)(2)(E) contemplated that parties requesting ESI would be able to organize it themselves—in their own way, to their own satisfactory level of thoroughness, and at their own expense—through the use of text-searching technologies like filtering, grouping, and ordering.”

The court concluded its opinion as follows:

The Plaintiffs want the benefits of both (E)(i) and (E)(ii). They are dissatisfied at being denied the perks of (E)(i), but they would likely be equally dissatisfied had the Defendants refused their request for electronic production and turned over 20,000 pages of hard copy documents—organized “in the usual course of business” or not. And, even if that was their preference, the Plaintiffs forfeited their right to demand hard copy production—and the rules that govern it—when they agreed with the Defendants to receive the production as ESI. Were the Court to now require the Defendants to effectively produce hard copies, it would violate the (E)(iii) provision that “[a] party need not produce the same electronically stored information in more than one form.” Fed.R.Civ.P. 34(b)(2)(E)(iii). The Defendants satisfied their discovery obligations when they produced the items in question, in PDF format, as the Plaintiffs requested.

A copy of the court’s opinion is available here.