In a form of production battle, the producing party claimed they were denied the opportunity to object to the form of production, because the requesting party did not state a form of production. The Court did not need to use Pi to solve this circular argument.
After a motion to compel battle, the Defendants were ordered to produce their general ledger in electronic format within 10 days of the Court’s order. Estate of Eva Boles v. Nat’l Heritage Realty, Inc., 2010 U.S. Dist. LEXIS 79770, at *7 (N.D. Miss. Aug. 6, 2010).
The Defendants were to also file with the Court an itemized cost breakdown on their production costs. Id.
The Defendants argued they should be allowed to produce their ledger in PAPER format within 4 to 6 weeks of the Court order. Estate of Eva Boles, at *7.
The Defendants first estimated their production costs to be $30,000. They upped the ante and requested the Plaintiffs deposit $292,296.07 with the Court for their production costs. Estate of Eva Boles, at *8.
The Court said “No” to the paper production and the $292,296.07 deposit.
After several hearings on numerous issues, the Defendants finally produced the general ledgers…sort of.
The Defendants explained in their production letter that the ESI produced was encrypted and subject to the following limitations:
2) Could not be printed;
3) Could not be e-mailed; and
4) Would only be accessible until September 3, 2010.
Estate of Eva Boles, at *12.
The Defendants also would be notified once the license to view had been activated. Estate of Eva Boles, at *12.
The Court in turn ordered the Defendants to produce unrestricted ESI. The Defendants filed an emergency motion for reconsideration. Estate of Eva Boles, at *12-13.
Federal Rule of Civil Procedure Rule 34 Redo
The Defendants’ key argument was that they were “denied” the “procedural protections” of Federal Rule of Civil Procedure Rule 34.
To recap Federal Rule of Civil Procedure Rule 34:
A party can request, “any designated documents or electronically stored information . . . stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.” Estate of Eva Boles, at *16, citing Federal Rule of Civil Procedure Rule 34(a)(1)(A).
A party “may specify the form or forms in which electronically stored information is to be produced.” Estate of Eva Boles, at *16-17, citing Federal Rule of Civil Procedure Rule 34(b)(1)(C).
The producing party may object to the form of production and state which form they intend to use. Estate of Eva Boles, at *17, citing Federal Rule of Civil Procedure Rule 34(b)(2)(D).
Federal Rule of Civil Procedure Rule 34(b)(2)(E) states:
(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 produce 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.
The Defendants’ argument can be summarized as circular: They claimed did not object to the form of production, because the Plaintiffs did not state a form of production, therefore, they were denied the opportunity to object to the form of production. Estate of Eva Boles, at *18.
The Defendants did not raise any objections on the form of production until their third hearing on producing the general ledgers, which was 6 months after the request was first served and three months before trial. Estate of Eva Boles, at *19-20.
That is exactly what the Court held.
The Court further took the Defendants to task for their production failures under Federal Rule of Civil Procedure Rule 34(b)(2)(E)(ii), which states that when no form of production is stated, the ESI must be produced in “a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Estate of Eva Boles, at *22.
Even if there had not been a waiver of their objections, the Defendants still did not comply with Rule 34(b)(2)(E)(ii).
Bow Tie Thoughts
Discovery can turn into a war of attrition: Drive up the cost to force the other side to give up.
The Defendants’ attempt to force a $292,296.07 paper production is exactly one of those tactics, whether intentionally or not. The repeated motion practice also would drive up the cost of litigation.
e-Discovery does not mean production costs are perfunctory expensive. However, protracted form of production battles that go on for months will drive up costs; form of production arguments sprung on a court in the waning months before trial will unnecessarily drive up costs, let alone tick off the judge.
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.