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appears to be a very interesting case to say the least

Sent to you by pakurilecz via Google Reader: Documents Re-Organized and
Stored are No Longer Maintained in "Usual Course of Business," Offer of
Inspection Inadequate Discovery Response via Electronic Discovery Law
by [log in to unmask] (K&L Gates) on 3/2/09
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.]

Copies of the full opinions are available here:

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)


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