Magistrate Expresses Concern Regarding Production of CDs Containing Scanned Documents, But Denies Motion to Compel as Untimely

Bergersen v. Shelter Mut. Ins. Co., 2006 WL 334675 (D. Kan. Feb. 14, 2006)

In this wrongful termination case, defendants produced three CDs containing a total of 7,253 documents which, according to plaintiff, were not “kept in any perceivable sequential order.” Plaintiff argued that the production did not comply with Rule 34(b), which requires a party to produce documents “as they are kept in the usual course of business or . . . organize and label them to correspond with the categories in the request.” Despite the fact that defendants had the documents scanned onto computer disc, they contended that they were produced as they were kept in the usual course of business. They argued that they produced all responsive documents and were under no obligation to specifically identify any such documents or to provide a directory of documents produced.

The court observed that the Federal Rules do not define what it means to produce documents “as they are kept in the usual course of business,” but that the court had previously addressed the issue as follows:

a party who chooses the 34(b) option to produce documents as they are kept in the ordinary course of business bears the burden of showing that the documents were in fact produced in that manner. A mere assertion that they were so produced is not sufficient to carry that burden. In addition, merely categorizing the documents produced does not, without some further explanation, satisfy the requirement that they be produced as kept in the usual course of business

2006 WL 334675, at *2 (citation omitted). Thus, the court stated it did not accept defendants’ assertion of their duty in this case. It continued:

It is clear that the documents produced by Defendants were not produced “as they are kept in the usual course of business.” Instead, at least some of the documents were kept as hard-copies, but were then scanned onto a CD for production. When this is done, a receiving party may not be able to determine which specific images comprise a single document or attachments to a document since there are no staples which bind together the scanned images as they would hard copies in a file. Faced with problems such as this, some courts have required a producing party to label, organize or index documents being produced, if doing so is necessary to make the documents usable by the requesting party. See Shira A. Scheindlin & Jeffrey Rabkin, Electronic Discovery in Federal Civil Litigation: Is Rule 34 Up To The Task?, 41 BOSTON COLL.L.REV. 327, 352-56 (2000) (reviewing cases).

Parties producing documents electronically often enter into agreed orders concerning the protocol to be followed. See e.g., Heartland Surgical Specialty Hospital, LLC v. Midwest Division, Inc., et. al., District of Kansas, Case No. 05-2164-MLB at Doc. 198. Those agreements may contain provisions for (1) keying which documents were produced from electronic files and which were scanned from hard-copy files, (2) keeping multi-page documents as a unit, (3) providing source information which identifies, where possible, the custodian of a particular document or set of documents, etc. While the Court has not seen the actual format in which the documents were produced in this case, it appears that none of these types of aids were provided as part of Defendants’ document production.

However, notwithstanding the court’s stated concerns regarding the manner in which defendants produced documents, the court denied plaintiff’s motion because it was not filed within 30 days after receipt of defendants’ discovery responses.

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