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Sent to you by pakurilecz via Google Reader: Court Orders Party to
Explain How Documents Produced in Digital Format Were Ordinarily
Maintained via Electronic Discovery Law by [log in to unmask]
(K&L Gates) on 10/13/08
Pass & Seymour, Inc. v. Hubbell Inc., 2008 WL 4240490 (N.D.N.Y. Sept.
12, 2008)

In this patent infringement case, the court addressed the issue of
whether, in response to 72 separate document requests, the plaintiff's
production in digital format of 405,367 pages of documents, apportioned
among 202 unlabeled folders and which through application of litigation
support software could be made text searchable, but was otherwise
neither organized to correlate to the document demands nor in any
fashion indexed or labeled to reflect how they were maintained in the
ordinary course of plaintiff's business, satisfied the responding
party's obligations under Rule 34 of the Federal Rules of Civil
Procedure. Plaintiff asserted that, pursuant to FRCP 34, it had
produced the documents in the manner in which they were maintained in
the ordinary course of business and therefore need not indicate to
which request the documents were responsive. In support of its
position, plaintiff offered only the statement of an attorney
indicating that the documents had been assembled as they had been
maintained.

Defendant countered that the production did not comport with the letter
or spirit of the rule, and sought an order compelling plaintiff to
organize the documents produced and to disclose which were responsive
to each of the 72 document requests. Agreeing in part with defendant,
the court ordered plaintiff to provide some additional information
regarding the organization of the documents in the ordinary course of
its business.

The court began its analysis by observing that the issue was governed
by Rule 34(b)(2), “which provides, in relevant part, that unless
otherwise stipulated or ordered a party responding to a demand by a
federal court litigant for the production of documents ‘must produce
[them] as they are kept in the usual course of business or must
organize and label them to correspond to the categories in the
request; . . .’” 2008 WL 4240490, *2 (citing Rule 34(b)((2)(E)(i),
relating to production of paper documents).

The court acknowledged that Rule 34 allowed for production of
information in the manner it was ordinarily maintained. However, the
court went on to note that “more in the way of organization is required
in order to make the document production meaningful, and thus proper”
and pointed out that “the rule contemplates that a party selecting this
option disclose information to the requesting party regarding how the
documents are organized in the party’s ordinary course of business.”

The court held that the plaintiff failed to fulfill its discovery
obligations by producing the documents with no attendant information
regarding how the documents had been maintained. In so deciding, the
court indicated the minimum requirements for compliance:
As the foregoing reflects, a party who in response to a discovery
demand has chosen to produce documents as they are ordinarily
maintained must do just that – produce the documents organized as they
are maintained in the ordinary course of producing party's business,
with at least some modicum of information regarding how they are
ordinarily kept in order to allow the requesting party to make
meaningful use of the documents. At a minimum, that means 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.

The court then ordered plaintiff to provide additional information
regarding the organization of the documents in the ordinary course of
its business, but declined to require plaintiffs to organize the
documents to correspond with the 72 requests, as defendant had
requested. In so holding, the court made an interesting comment about
the potential impact of electronic discovery and its attendant tools
and processes on the rule’s requirements:
The court appreciates the burden associated with attempting to organize
and collate 405,367 pages of documents, and further recognizes with the
advent and increased use of digitized information and litigation
support software, large quantities of documents can be rendered both
manageable and text searchable. Accordingly, it can be argued that less
by way of organizational information should be required than
historically may have been the case in order to permit informed use of
documents produced by an opponent.

A copy of the decision is available here.


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