Back to Basics: Court Orders Compliance with Rule 34

Venture Corp. Ltd. v. Barrett, No. 5:13-cv-03384-PSG, 2014 WL 5305575 (N.D. Cal. Oct. 16, 2014)

Most lawyers (and hopefully judges) would be forgiven if they could not recite on demand some of the more obscure of the Federal Rules of Civil Procedure. Rule 80 (Stenographic Transcript as Evidence) and Rule 64 (Seizing a Person or Property) come to mind. But Rule 34 (Producing Documents, Electronically Stored Information, and Tangible Things) is about as basic to any civil case as it gets. And yet, over and over again, the undersigned is confronted with misapprehension of its standards and elements by even experienced counsel. Unfortunately, this case presents yet another example.

– Opening paragraph, Venture Corp. Ltd. v. Barrett

In this case, after the parties failed to reach agreement regarding how responsive information should be produced, Plaintiffs produced approximately 41,000 pages on a flash drive and by email.  “The drive and email contained no custodial index, no table, no information at all—just folders of the files themselves.”  When Defendant followed up the production by requesting identification of what documents responded to what categories, Plaintiffs asserted that he had agreed to accept the documents as produced (a point with which the defendant disagreed) and that the follow up requests were untimely and unwarranted.  Defendant moved to compel.

Beginning its analysis, the Court explained that Rule 34 includes “two specific and separate requirements” aimed at preventing the problems associated with a “document dump”:

First, “[a] party must produce documents as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the request.” Second, “[i]f a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. A party need not produce the same electronically stored information in more than one form.”

As established by the Court, because Plaintiffs did not organize and label their production, they were obligated to produce the information as kept in the usual course of business.  Further, it is the burden of the producing party to establish their compliance with this rule.  In the present case, the Court noted that it would have expected to see, “[a]t a minimum,” “the documents and ESI kept by the name of the employee from whom the documents were obtained or at least which [Plaintiff] had produced the documents.”  Instead, “there was nothing in the way of any such source information.”

Rejecting Plaintiffs’ assertion that they offered to “produce the files together with load files and an index” but that Defendant “told them he would accept production in PDF and native form,” (and noting that Plaintiffs did not “dispute that their documents and ESI are kept in some more hierarchical scheme”), the Court further reasoned that “[m] ore fundamentally, even if there was such an agreement, an agreement on form relieves a responding party of any further form obligations under subsection (ii) of Rule 34(b)(2)(E). It does nothing to relieve such a party of its obligation under subsection (i) to produce the documents and ESI as they are kept in the ordinary course of business.”  The Court’s analysis continued:

This distinction matters. Form under subsection (ii) is about whether the production should be native, near-native, imaged as PDF (or more commonly, as TIFFs accompanied by load files containing searchable text and metadata) or in paper (printed out).Providing information about how documents and ESI are kept under subsection (i) “[a]t a minimum … mean[s] 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.”

Finally, the Court reasoned that absent an agreement on form, Plaintiffs were obligated to show that the production was in an “ordinarily maintained” or “reasonably usable form,” which the “grab-bag of PDF and native files” was not.

Having established Plaintiffs’ failure to meet the requirements of Rule 34, the Court turned to the “question of remedy.”

While Barrett wants the production organized and labeled, as he has all along, the court sees no reason to limit the remedy to only what Barrett wants. After all, during the meet and confer, and even at the hearing on this matter, Barrett kept insisting that organization and labeling is always required–never mind the disjunctive structure of subsection (i)’s language. And so to remedy this situation, the Ventures shall do three things: (1) either organize and label each document it has produced or it shall provide custodial and other organizational information along the lines outlined above and (2) produce load files for its production containing searchable text and metadata.

As for Barrett’s requested fees and costs, this request is denied. Barrett’s unwillingness to accept the disjunctive nature or subsection (i), insistence on organization and labeling and delay in bringing this motion only contributed to the unfortunate situation at hand.

A full copy of the Court’s opinion and order is available here.

Copyright © 2018, K&L Gates LLP. All Rights Reserved.