The Plaintiffs in Flying J, Inc. v. Pilot Travel Ctrs. LLC brought a motion to compel discovery request for data pertaining to trucker fuel card transactions and for the producing party to create a separate monthly report. Flying J, Inc. v. Pilot Travel Ctrs. LLC, 2009 U.S. Dist. LEXIS 55283, 6 (D. Utah June 25, 2009).
In prior discovery, the Plaintiffs were directed to produce similar information about their trucker fuel card business in response to the Defendant’s interrogatories. Flying J, Inc., 6.
Plaintiffs argued that the Defendants cannot request the same information in their discovery requests and then refuse the Plaintiffs’ requests. Flying J, Inc., 6-7.
The Defendants’ claimed that “[w]hile a party may be under an obligation to compile data in response to interrogatories [as was the case with the interrogatories Defendants sent Plaintiffs], [Defendant] would be under no comparable obligation to [create compilations] in response to a Rule 34 request.” Flying J, Inc., 7.
The Issues: Creating Summaries & Producing Raw Data
The Court summarized the issues at bar as 1) Whether the Defendants had to create summaries of the credit card transactions and 2) Was it unreasonably burdensome for the Defendants to produce data without the Plaintiffs also producing it. Flying J, Inc., 7-8.
One Wide Load of a Discovery Request
The Request sought ESI “sufficient to show” monthly totals, which the Court translated as data the Plaintiffs could use to determine the totals. The Request also sought summaries that required the Defendants to “slide, dice and summarize the data.” Flying J, Inc., 8.
The Defendant admitted that the data was relevant and would satisfy the discovery request. Flying J, Inc., 8-9.
Rule 34 Response: Data or Summarizes
The Court stated that Rule 34 cannot compel a party to summarize data. However, a responding party might choose to do so if the summary would be “truly responsive to the request.” Flying J, Inc., 9.
The Court held the Producing Party could produce the data or a summary of the data that was responsive to the request for production. Flying J, Inc., 9. The Court specifically stated:
The court does not read Fed. R. Civ. P. 34 or its prior order on similar data as permitting a request for production to require a responding party to create compilations and summaries. The rule speaks of “compilations” as a type of information that may be sought. On the other hand, the rule probably does not prohibit a responding party from creating providing summaries if they are truly responsive to the request. This might be preferable for the producing party and acceptable to the requesting party. But a request for production cannot require a responding party to compile and summarize. Because the information Plaintiffs seek is relevant and derivable from Comdata’s transaction database, Comdata must produce responsive information, either in the form of the transaction database or in acceptable summaries it creates. Flying J, Inc., 9.
No Excuse by Lack of Reciprocity
The Court shot down the Defendants’ claim that the discovery request was “unreasonably burdensome” without requiring the Plaintiffs to make a similar production. Flying J, Inc., 9-10.
Civil discovery rules do not allow an “excuse by lack of reciprocity.” Flying J, Inc., 10. The Court stated, “A party is not excused from making disclosures because ‘another party has not made its disclosures.’” Id.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.