Court Denies Motion to Compel Production of Electronic Versions of Previously Produced Hard Copy

Northern Crossarm Co., Inc. v. Chem. Specialties, Inc., 2004 WL 635606 (W.D. Wis. Mar. 3, 2004)

Defendant produced its email in hardcopy form, amounting to about 65,000 pages, and plaintiff moved to compel defendant to produce the email in electronic form. The court denied the motion, stating:

Contrary to plaintiff’s argument, Rule 34 does not require a party to present evidence in a particular format. Rule 34(a) specifies that electronic data falls within the definition of “documents,” and requires that the respondent must, if necessary, translate that information into reasonably usable form, but this does not require the respondent to present its evidence in the format in which the respondent stores it. To the contrary, this provision of the rule ordinarily is used to justify a party’s motion to compel its opponent to disclose its electronic information in a different format, such as providing hard copies of its e-mail, with the opponent arguing that a CD is enough. But regardless of the direction in which the dispute runs, neither the letter nor the spirit of Rule 34 mandates that a party is entitled to production in its preferred format.

Rule 34(b) provides that a party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize them to correspond with the categories in the request. This does not contradict Rule 34(a) because it is an anti-sabotage provision: a party may not dump its files into a mail cart, stir well, then wheel it to opposing counsel. Thus, if a party produces its electronic information in a hard copy format that mimics the manner in which that information is stored electronically, then that party has not disobeyed Rule 34.

If a party specifically requests the production of electronic information in a specific electronic format, then the respondent cannot simply ignore the request: it must comply, compromise, or seek court protection. But in the absence of such a specific demand – or perhaps a less formal but actual understanding between the attorneys – it is not improper for a party to provide its electronic data in hard copy form.

2004 WL 635606, at *1. The court further noted that this was a routine practice for defendant to produce electronic material in hard copy format, and that it did not do so as a “sharp tactic in contravention of any rules or agreements.” It noted: “It cost a lot of money to provide 65,000 copies, but defendant has absorbed the expense. I discern no malice or gamesmanship here, just an unfortunate failure to communicate adequately. That’s not a basis to grant relief.”

Finally, the court observed that defendant’s attorneys created the CDs “solely for work product purposes,” and that they were over-inclusive. It noted that defense counsel had provided affidavits reporting that the process of re-reviewing and then producing the “internal CDs” would consume extraordinary amounts of time and money. It concluded that, under the circumstances presented, it “would not put defendant to this expense.” Id. at 2.

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