Court: Production of Hard Copy Versions of Documents Also Kept As ESI Does Not “Run Afoul” of Rule 34

Ortega v. Mgmt. & Training Corp., NO. 16-cv-0665 MV/SMV, 2017 WL 3588818 (D.N.M. Jan. 1, 2017)

In this case, Plaintiff sought to compel native/electronic production of documents previously produced in hard copy. Defendant claimed that the documents in question were “ordinarily kept by Defendant both electronically and in hard copy” and produced only the hard copy format.  The court found that Defendant’s production did not “run afoul of Rule 34.”

Rule 34 does not require the producing party to produce documents in multiple formats. Fed. R. Civ. P. 34(b)(2)(E)(iii). Nor does Rule 34 require the producing party to produce electronically stored documents in the form in which they are ordinarily maintained. Fed. R. Civ. P. 34(b) advisory committee’s note to 2006 amendment. Rather, the producing party is required only to produce such documents in a “reasonably usable form”; it cannot convert electronically stored information “to a different form that makes it more difficult or burdensome for the requesting party” to use the documents. Id. Defendant’s production of hard copy versions of documents kept both electronically and in hard copy does not run afoul of Rule 34.

In footnote, the court “encourage[d]” the defendant to produce the documents electronically, “to the extent it [could] do so without incurring significant expense.”

A copy of the court’s brief order is available here.

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