December 1, 2006 seems like a lifetime ago when the Federal Rules of Civil Procedure first truly incorporated rules for electronically stored information. It was a time before to iPhones, Netflix, or Marvel movies. Fast-forward to the end of 2018 and attorneys are still having challenges with producing electronically stored information.
In a wrongful conviction case with the Plaintiff suing on civil rights and tort claims against the local government and police, a discovery dispute broke out after the Plaintiff’s production of paper and ESI. Echavarria v. Roach, 2018 U.S. Dist. LEXIS 216021, at *2 (D. Mass. Dec. 26, 2018).
Plaintiff produced “documents,” presumably attached to an email, that did not state what the production contained. Furthermore, the files did not contain any metadata or information of where the records were from and who were the custodians. Echavarria, at *3-4.
U.S. District Judge Allison Burroughs provided an overview of the organization requirements under 34(b)(2)(E). As to documents, a producing party may elect to “…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.” Echavarria, at *2, citations omitted.
Judge Burroughs further explained that the “usual course of business” option only available then “when the documents’ natural organization makes finding critical documents reasonably possible.” Echavarria, at *2-3, citations omitted.
Here is the kicker: it is the burden of the producing party to show that the “natural organization” does indeed make finding documents reasonably possible. Echavarria, at *3, citations omitted. This burden has been met for email productions by producing productions with complete families (email and attachment) that are “organized chronologically by custodian or by producing metadata that allows automated sorting.” Id. ESI that is not email can be produced with metadata showing the custodian and location of storage (such as the file pathway). Id.
The Court held that the Plaintiff failed to show that the production had a natural organization that made finding critical documents reasonably possible. Echavarria, at *3-4. The Court ordered that if “documents” were produced without metadata or other identifying information, the producing party must include in the production where the documents were collected from and identify what request the documents are responsive to. Non-conforming productions were ordered to be amended. Echavarria, at *4.
Bow Tie Thoughts
This is one of those cases with the right result, but blurs the line between “documents” and “electronically stored information.” While the term “document” can be inclusive of ESI, the use of the term “document” can cause some confusion when referring to ESI. The distinction matters, because under Rule 34(b)(2)(i), “documents” must be produced in the “usual course of business or must organize and label them to correspond to the categories in the request.” Rule 34(b)(2)(ii) specifically addresses ESI for when a requesting party does not state the form of production, which requires the producing to produce ESI “in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.”
The terms “usual course of business” and “ordinarily maintained” could very well have just academic differences, but have the same result in producing discovery as it is kept in the normal course of business. However, there is a big difference between printed documents in file cabinets and terabytes of data. Moreover, there has been substantial caselaw on whether a production is in a reasonably useable form.
It is worth noting there is a difference between a request for production and the form of production, even though both are intrinsically linked. The Advisory Committee Notes to the 2006 Amendments to the Federal Rules state that “a Rule 34 request for production of documents should be understood to encompass, and the response should include, electronically stored information unless discovery in the action has clearly distinguished between electronically stored information and documents.” Landry v. Swire Oilfield Servs., L.L.C., No. CIV 16-0621 JB/LF, 2018 U.S. Dist. LEXIS 885, at *62-64 (D.N.M. Jan. 3, 2018), citing the 2006 Advisory Committee Notes to the 2006 Amendments to the Federal Rules of Civil Procedure. However, the form of production must be reasonably useable and cannot be degraded by a producing party, such as converting ESI to PDFs. See, Jannx Med. Sys. v. Methodist Hosps., Inc., 2010 U.S. Dist. LEXIS 122574, at *11 (N.D. Ind. Nov. 17, 2010).
The above case focused on Rule 34(b)(2)(i) and applied it to ESI, yet still ultimately got the right result. ESI does have a “natural organization” because of metadata and being in a reasonably useable form. While the analysis blended Rule 34(b)(2)(i) and Rule 34(b)(2)(ii), this looks the right result for producing both ESI and documents.
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.