A Practice Point in Agreeing to the Form of Production

In a products liability case, the Plaintiffs claimed they could not tell if the Defendants produced electronically stored information in the form it was ordinarily maintained. In re Bisphenol a Polycarbonate Plastic Prods. Liab. Litig., 2010 U.S. Dist. LEXIS 52444 (W.D. Mo. May 26, 2010).

Federal Rule of Civil Procedure Rule 34(b)(2)(E) states that electronically stored information must be produced in the form it is ordinarily maintained or a “reasonably usable for…” In re Bisphenol a Polycarbonate Plastic Prods. Liab. Litig., at *34.

The Plaintiffs took the position that the Defendants did not provide any proof how their ESI was ordinarily maintained, thus could not tell if the producing party complied with Federal Rule of Civil Procedure Rule 34(b)(2)(E) and their agreed upon production format that was codified as a court order.  In re Bisphenol a Polycarbonate Plastic Prods. Liab. Litig., at *35.

The opinion is silent on what form was exactly produced, leaving us to wonder if there were signs of form of production gamesmanship.

The Court coldly held the parties got what they bargained for.  While the parties agreed to a production format, the agreement did not include any proof requirements that the electronically stored information was produced in the form it was maintained.  As such, the Court denied the Plaintiffs’ request.

Bow Tie Thoughts

This short and blunt result is a warning to be specific in production formats that are later codified as a court order.  Moreover, it is unknown what the producing party actually produced or whether the requesting party had any expert assistance in demonstrating the ESI was not produced as it was ordinarily maintained.  Whatever the facts of this case, it is a warning to understand the data in a discovery request, the form of production sought and the importance of expert assistance in agreeing to a production format.

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 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.