Right to Specify Form of Production of ESI Does Not Authorize Requesting Party to Dictate Organization of Opposing Party’s Production under Rule 34(b)(2)(E)
Suarez Corp. Ind. v. Earthwise Techs., Inc., 2008 WL 2811162 (W.D. Wash. July 17, 2008)
In this trademark infringement case, Suarez moved to compel Earthwise to organize and correlate responsive documents and ESI to Suarez’s 136 or more requests for production. Earthwise had produced “55,000 emails, six boxes of documents consisting of approximately 8,700 pages in .pdf form as [Suarez] requested, and nine CDs of data in native format that contain hundreds-if not thousands-of individual files.” Suarez claimed that Earthwise’s production was essentially a “document dump” without any cognizable organization.
Rule 34(b)(2)(E) provides:
Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:
(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;
(ii) If a request does not specify a form for producing electronically stored information, a party must produced it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and
(iii) A party need not produce the same electronically stored information in more than one form.
There was no evidence that Suarez had requested that responsive ESI be produced in a specific form or that Earthwise had objected to that requested form, if any. However, it was also unclear how Earthwise determined what documents were responsive to Suarez’s requests.