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.

Suarez argued that, because it is allowed to choose the form of electronic discovery under Rule 34(b)(1), it is allowed to request that discovery material shall be produced either as it was kept in the normal course of business or organized and labeled in a way that corresponds to specific requests for production.  Suarez thus asserted that Earthwise should be required to organize and correlate its production to Suarez’s 136 or more requests for production.

The court rejected this argument, but concluded that Earthwise must convey some information as to how documents were determined to be responsive or how the documents were kept in the normal course of business:

The Court is unaware of any Ninth Circuit case law that allows a party to mandate the organization of the opposing party’s production of either electronic or tangible material pursuant to the provisions of Fed. R. Civ. P. 34(b)(2)(E).   The Court does, however, have discretion regarding discovery matters.  Kulas v. Flores, 255 F.3d 780, 783 (9th Cir. 2001).  In this case, Suarez’s arguments are unpersuasive.  The comments to Rule 34(b) discuss, without affirmatively stating, that the term “form” relates to the diverse types of electronically stored information such as file types (“.pdf”) or various storage means.  The comments do not refer to the term “form” as encompassing the organization of all of a party’s production.  Therefore, “form” does not refer to the organizational mandates of Rule 34(b)(2)(E)(i) and Suarez is without authority to mandate how Earthwise produces material under that provision.  This does not resolve the issue of whether Earthwise’s production was adequate under that rule.

Suarez claims that Earthwise’s production was unorganized and that Suarez cannot determine what documents are responsive to what request for production.  To determine the adequacy of a production, the Court must first look to what was requested.  It would seem that an overly broad request could result in a so called “document dump.”  On the other hand, a fairly specific request would be frustrated by such a “dump.”  In one request, Suarez requested “All documents sufficient to show all email addresses and email accounts you have used at any time during the years 2000 to the present.”  The 55,000 emails produced by Earthwise would most likely be sufficient to show all of Earthwise’s email addresses and accounts.  Earthwise, however, produced the material and then responded to the majority of Suarez’s requests with the single statement “See documents produced herewith.”  The record does not reflect that Earthwise indicated, or even attempted to convey, whether the materials were produced “as they are kept in the usual course of business” or were organized and labeled such that the material corresponded to the categories of the requests.  While the Court should not hold that Suarez has the discretion to instruct Earthwise on how the production is organized, the Court should require, under its discretionary authority, that Earthwise convey some information as to how documents were determined to be responsive or how the documents were kept in the normal course of business.  Additionally, it is unknown whether the paper materials or the CDs of data produced by Earthwise suffered from the same organizational defaults.

The court therefore granted Suarez’s motion to compel in so far as Earthwise’s production did not conform to the organization requirements of Rule 34(b)(2)(E)(i).  The court expressed its hope that the parties would work together to efficiently solve the deficiencies.

A copy of the full decision is available here.

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