Court Orders Party to Explain How Documents Produced in Digital Format Were Ordinarily Maintained

Pass & Seymour, Inc. v. Hubbell Inc., 2008 WL 4240490 (N.D.N.Y. Sept. 12, 2008)

In this patent infringement case, the court addressed the issue of whether, in response to 72 separate document requests, the plaintiff’s production in digital format of 405,367 pages of documents, apportioned among 202 unlabeled folders and which through application of litigation support software could be made text searchable, but was otherwise neither organized to correlate to the document demands nor in any fashion indexed or labeled to reflect how they were maintained in the ordinary course of plaintiff’s business, satisfied the responding party’s obligations under Rule 34 of the Federal Rules of Civil Procedure.  Plaintiff asserted that, pursuant to FRCP 34, it had produced the documents in the manner in which they were maintained in the ordinary course of business and therefore need not indicate to which request the documents were responsive.  In support of its position, plaintiff offered only the statement of an attorney indicating that the documents had been assembled as they had been maintained.

Defendant countered that the production did not comport with the letter or spirit of the rule, and sought an order compelling plaintiff to organize the documents produced and to disclose which were responsive to each of the 72 document requests.  Agreeing in part with defendant, the court ordered plaintiff to provide some additional information regarding the organization of the documents in the ordinary course of its business.

The court began its analysis by observing that the issue was governed by Rule 34(b)(2), “which provides, in relevant part, that unless otherwise stipulated or ordered a party responding to a demand by a federal court litigant for the production of documents ‘must produce [them] as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; . . .’” 2008 WL 4240490, *2 (citing Rule 34(b)((2)(E)(i), relating to production of paper documents).

The court acknowledged that Rule 34 allowed for production of information in the manner it was ordinarily maintained.  However, the court went on to note that “more in the way of organization is required in order to make the document production meaningful, and thus proper” and pointed out that “the rule contemplates that a party selecting this option disclose information to the requesting party regarding how the documents are organized in the party’s ordinary course of business.”

The court held that the plaintiff failed to fulfill its discovery obligations by producing the documents with no attendant information regarding how the documents had been maintained.  In so deciding, the court indicated the minimum requirements for compliance:

As the foregoing reflects, a party who in response to a discovery demand has chosen to produce documents as they are ordinarily maintained must do just that – produce the documents organized as they are maintained in the ordinary course of producing party’s business, with at least some modicum of information regarding how they are ordinarily kept in order to allow the requesting party to make meaningful use of the documents.  At a minimum, that means that the disclosing party should provide information about each document which ideally would include, in some fashion, the identity of the custodian or person from whom the documents were obtained, an indication of whether they are retained in hard copy or digital format, assurance that the documents have been produced in the order in which they are maintained, and a general description of the filing system from which they were recovered.

The court then ordered plaintiff to provide additional information regarding the organization of the documents in the ordinary course of its business, but declined to require plaintiffs to organize the documents to correspond with the 72 requests, as defendant had requested.  In so holding, the court made an interesting comment about the potential impact of electronic discovery and its attendant tools and processes on the rule’s requirements:

The court appreciates the burden associated with attempting to organize and collate 405,367 pages of documents, and further recognizes with the advent and increased use of digitized information and litigation support software, large quantities of documents can be rendered both manageable and text searchable.  Accordingly, it can be argued that less by way of organizational information should be required than historically may have been the case in order to permit informed use of documents produced by an opponent. 

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