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Sent to you by pakurilecz via Google Reader: Right to Specify Form of
Production of ESI Does Not Authorize Requesting Party to Dictate
Organization of Opposing Party's Production under Rule 34(b)(2)(E) via
Electronic Discovery Law by [log in to unmask] (K&L Gates) on
8/5/08
Suarez Corp. Ind. v. Earthwise Techs., Inc., 2008 WL 2811162 (W.D.
Wash. July 17, 2008)

In this trademark infringement case, Suarez moved to compel Earthwise
to organize and correlate responsive documents and ESI to Suarez's 136
or more requests for production. Earthwise had produced “55,000 emails,
six boxes of documents consisting of approximately 8,700 pages in .pdf
form as [Suarez] requested, and nine CDs of data in native format that
contain hundreds-if not thousands-of individual files.” Suarez claimed
that Earthwise's production was essentially a “document dump” without
any cognizable organization.

Rule 34(b)(2)(E) provides:

Producing the Documents or Electronically Stored Information. Unless
otherwise stipulated or ordered by the court, these procedures apply to
producing documents or electronically stored information:

(i) 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 in the request;
(ii) If a request does not specify a form for producing electronically
stored information, a party must produced it in a form or forms in
which it is ordinarily maintained or in a reasonably usable form or
forms; and
(iii) A party need not produce the same electronically stored
information in more than one form.



There was no evidence that Suarez had requested that responsive ESI be
produced in a specific form or that Earthwise had objected to that
requested form, if any. However, it was also unclear how Earthwise
determined what documents were responsive to Suarez's requests.

Suarez argued that, because it is allowed to choose the form of
electronic discovery under Rule 34(b)(1), it is allowed to request that
discovery material shall be produced either as it was kept in the
normal course of business or organized and labeled in a way that
corresponds to specific requests for production. Suarez thus asserted
that Earthwise should be required to organize and correlate its
production to Suarez's 136 or more requests for production.

The court rejected this argument, but concluded that Earthwise must
convey some information as to how documents were determined to be
responsive or how the documents were kept in the normal course of
business:

The Court is unaware of any Ninth Circuit case law that allows a party
to mandate the organization of the opposing party's production of
either electronic or tangible material pursuant to the provisions of
Fed. R. Civ. P. 34(b)(2)(E). The Court does, however, have discretion
regarding discovery matters. Kulas v. Flores, 255 F.3d 780, 783 (9th
Cir. 2001). In this case, Suarez's arguments are unpersuasive. The
comments to Rule 34(b) discuss, without affirmatively stating, that the
term “form” relates to the diverse types of electronically stored
information such as file types (“.pdf”) or various storage means. The
comments do not refer to the term “form” as encompassing the
organization of all of a party's production. Therefore, “form” does not
refer to the organizational mandates of Rule 34(b)(2)(E)(i) and Suarez
is without authority to mandate how Earthwise produces material under
that provision. This does not resolve the issue of whether Earthwise's
production was adequate under that rule.

Suarez claims that Earthwise's production was unorganized and that
Suarez cannot determine what documents are responsive to what request
for production. To determine the adequacy of a production, the Court
must first look to what was requested. It would seem that an overly
broad request could result in a so called “document dump.” On the other
hand, a fairly specific request would be frustrated by such a “dump.”
In one request, Suarez requested “All documents sufficient to show all
email addresses and email accounts you have used at any time during the
years 2000 to the present.” The 55,000 emails produced by Earthwise
would most likely be sufficient to show all of Earthwise's email
addresses and accounts. Earthwise, however, produced the material and
then responded to the majority of Suarez's requests with the single
statement “See documents produced herewith.” The record does not
reflect that Earthwise indicated, or even attempted to convey, whether
the materials were produced “as they are kept in the usual course of
business” or were organized and labeled such that the material
corresponded to the categories of the requests. While the Court should
not hold that Suarez has the discretion to instruct Earthwise on how
the production is organized, the Court should require, under its
discretionary authority, that Earthwise convey some information as to
how documents were determined to be responsive or how the documents
were kept in the normal course of business. Additionally, it is unknown
whether the paper materials or the CDs of data produced by Earthwise
suffered from the same organizational defaults.

The court therefore granted Suarez's motion to compel in so far as
Earthwise's production did not conform to the organization requirements
of Rule 34(b)(2)(E)(i). The court expressed its hope that the parties
would work together to efficiently solve the deficiencies.

A copy of the full decision is available here.

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