Documents Re-Organized and Stored are No Longer Maintained in “Usual Course of Business,” Offer of Inspection Inadequate Discovery Response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

A. The documents stored at a records repository were not maintained in the ordinary course of business pursuant to RCFC 34 [Note: Per its Advisory Committee Notes, RCFC 34 reflects the amendments to Fed. R. Civ. P. 34]

Defendant responded to plaintiff’s discovery requests by “making documents available for inspection” at the American Indians Record Repository (“AIRR”), “a federal records center… built… to preserve and protect Indian trust records and to accommodate research of those records.”  Defendant asserted that the information stored there was “indexed using the Box Index Search System (‘BISS’)” – an off the shelf program that captures information about the contents of each box and enters it into a searchable database.  Specifically, defendant stated that “…potentially relevant boxes of records from which the answer may be derived or ascertained are set forth in the BISS query results that will be produced to plaintiff.”  Plaintiff objected and brought a motion to compel defendant to organize and label any documents responsive to its requests.

RCFC 34 requires that “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 of the request.”  The option lies with the producing party.  Here, the court determined that documents made available for inspection by defendant were not maintained in the “usual course of business” as required and thus, defendant’s discovery response was insufficient.

In making its determination, the court relied on declaration testimony indicating that prior to their storage at the AIRR, the documents in question were maintained at two other agency offices in Arizona and New Mexico.  It was also revealed that in preparation for transport to AIRR, the documents were “substantially rearranged and co-mingled with the documents of at least one other Tribe.”  The details of the rearrangement and co-mingling were outlined by the court.

Accordingly, the court stated:

Once the documents are disassembled from their filing system at the agency office and reorganized to comport with the filing system at the AIRR, they are no longer kept “in the usual course of business”…Documents in storage “are no longer kept in the ‘usual course’ of business, they are kept in the usual course of ‘storage,’ and the option granted by the first clause of Rule 34(b) no longer exists.  That leaves the producing party with the obligation to ‘organize and label’ the documents to correspond to the document requests.

(Citations omitted.)  The court noted, however, that there were nevertheless “some circumstances in which production of documents as they are kept in storage is proper under RCFC 34(b),” but that in order to be proper, “the discovered party must…show that the way in which the documents are kept [in storage] has not changed from how they were kept in the usual course of business.”  That was not the case here.

B. Defendant’s proposed approach to permitting inspection of the documents was not in compliance with the requirements of RCFC 33 [Note: Per its Advisory Committee Notes, RCFC 33 reflects the amendments to Fed. R. Civ. P. 33]

In lieu of providing a direct answer to interrogatories, RCFC 33(d) provides the option of producing business records “if the burden of deriving or ascertaining the answer [from the business records produced] will be substantially the same for either party.”  The rule further states that the responding party must “specify the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could.”

Here, according to the court, defendant did not meet that burden. Specifically, the court stated:

Here, plaintiff has no familiarity with what documents defendant may or may not consider privileged or confidential.  It would therefore be not only more burdensome, but impossible, for plaintiff to identify answers to interrogatories amongst documents that may be responsive but have not been first reviewed by defendant for privilege or confidentiality.

The court went on to note that not only was defendant more familiar with the documents themselves, but also with the tools used to identify potentially responsive documents.

The court also indicated that even if defendant had met the threshold of showing equal burden, “defendant does not meet the specificity requirement of RCFC 33(d)(1)” requiring the responding party to specifically identify the documents which may contain the answers to the interrogatories.  Rather, defendant indicated that there were potentially relevant boxes from which the answers may be derived as set forth in the BISS query results to be produced to plaintiff.

Accordingly, in order to comply with the rule, the court indicated defendant’s need to specify the documents from which answers could be derived.

Plaintiff’s motion to compel was granted.  Defendant’s subsequent motion for reconsideration was denied but the court did amend its prior opinion so as to delete some findings.  [The deleted findings were not addressed in this summary.]

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