Archive: March 2, 2009

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Documents Re-Organized and Stored are No Longer Maintained in “Usual Course of Business,” Offer of Inspection Inadequate Discovery Response

Documents Re-Organized and Stored are No Longer Maintained in “Usual Course of Business,” Offer of Inspection Inadequate Discovery Response

Ak-Chin Indian Cmty. v. U.S., 85. Fed. Cl. 397 (Fed. Cl. Jan. 14, 2009)

Ak-Chin Indian Cmty. v. U.S., 2009 WL 320333 (Fed. Cl. Feb 5, 2009) (Denying Defendant’s Motion for Reconsideration but amending prior order in 85 Fed. Cl. 397 to delete certain findings of fact).

In this case, the court granted plaintiff’s motion to compel the defendant to organize and label its responses to plaintiff’s requests for production according to category, and to identify the specific documents from which responses to interrogatories could be derived.

Defendant responded to plaintiff’s discovery requests by making the requested information available for inspection.  The information could allegedly be located by querying a database containing data about the contents of each box stored at a particular location.  Plaintiff objected to defendant’s response and requested the information be organized and labeled according to the categories of its requests.  Finding that the documents offered for inspection were not maintained “in the usual course of business” and thus defendant’s response did not comply with RCFC 34, the court ordered defendant to organize and label the documents as requested by plaintiff.  The court also held that defendant had not met the requirements to properly rely upon RCFC 33(d) in responding to interrogatories where the rule allowed the production of business records as a response only where the burden of ascertaining the answer would be substantially the same for either party.

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