Adventures in Statutory Construction of FRCP Rule 34(b)(2)(E)

In a multi-party complex case, the parties agreed to the production of electronically stored information as TIFFs or JPEGs with fields of information that did not reflect the metadata of the native files.  The original production fields included: beginning bates number, ending bates number, page count, CD volume name, producing party, and produced date.  The agreement was codified as a case management order. City of Colton v. Am. Promotional Events, Inc., 2011 U.S. Dist. LEXIS 126848, 47-48 (C.D. Cal. Oct. 13, 2011).

As the Court later commented on the production protocol, “the parties did not produce ESI in the manner in which it is kept in the usual course of business, which, at a minimum, would identify the provenance of the files and provide some context as to their meaning.” City of Colton, at *48.

One Defendant brought a motion to compel well into discovery, arguing the United States did not comply with Federal Rule of Civil Procedure Rule 34(b)(2)(E)(i). The Defendants claimed the United States was required to produce documents and ESI as they were kept in the usual course of business or organize and label the production to correspond to the Production Requests.  City of Colton, at *29-30.

The United States argued the case management order superseded the requirements of Rule 34(b).  City of Colton, at *30.  Furthermore, the United States argued that the production of electronically stored information was controlled by Federal Rule of Civil Procedure Rule 34(b)(2)(E)(ii), which requires ESI to be produced as it is ordinarily maintained or in a reasonably useable form.  City of Colton, at *30-31.

Federal Rule of Civil Procedure Rule 34(b)(E) states:

  (E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:

         (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;

USCS Fed Rules Civ Proc R 34

The Special Master assigned to the case first heard the dispute and concluded that the case management order did not exempt the parties from Federal Rule of Civil Procedure Rule 34’s requirements.

Moreover, the Special Master found Rule 34(b)(2)(E)(i) applies to electronically stored information as well as paper documents.  The United States was ordered to either re-produce its prior production in native file format with corresponding metadata or “categorize by Production Request the Bates numbers of all previously produced ESI.” City of Colton, at *31-32.

Magistrate Judge Suzanne Segal agreed with the Special Master’s analysis that found Rule 34(b)(2)(E)(i) applies to electronically stored information as well as paper documents.

As a preliminary matter, the Magistrate Judge did not find any intent by the Judge who issued the case management order to deprive the parties their rights under the Federal Rules of Civil Procedure to ensure a production was organized in a “satisfactory way.”  City of Colton, at *33-36.

The Court engaged in a highly detailed review of the Advisory Committee Notes to Federal Rule of Civil Procedure Rule 34(b)(2)(E).  The Court recounted that the Advisory Committee specifically recognized that the term “document” encompassed ESI as a general rule:

“[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.'” Fed. R. Civ. P. Rule 34 advisory committee’s note (2006 Amendment, subdivision (a)). The notes specifically admonish that “[r]eferences to ‘documents’ appear[ing] in discovery rules that are not amended . . . should be interpreted to include electronically stored information as circumstances warrant.” Id.

City of Colton, at *39.

Furthermore, the Court also stated that ESI productions may not be “randomly organized:

Rule 34(b) provides that a party must produce documents as they are kept in the usual course of business or must organize and label them to correspond with the categories in the discovery request. The production of electronically stored information should be subject to comparable requirements to protect against deliberate or inadvertent production in ways that raise unnecessary obstacles for the requesting party. Rule 34(b) is amended to ensure similar protection for electronically stored information.” Id. (2006 Amendment, subdivision (b)).

City of Colton, at *40.

Based on the above, plus other case precedent, the Court found that Federal Rule of Civil Procedure Rule 34(b)(2)(E)(i) applied to ESI productions that they “must” be produced as they are kept in the usual course of business or “must” be labeled to correspond to the discovery request.  City of Colton, at *44.  As the Court explained:

While the specific information a producing party must provide when organizing a production “in the usual course of business” may vary in its details according to the type of document or file produced, it is clear that parties are entitled under the Federal Rules to rationally organized productions so that they may readily identify documents, including ESI, that are responsive to their production requests.

City of Colton, at *47.

The Court went on to state the following:

Unless and until the parties agree to amend their production protocol to include metadata fields sufficient to satisfy the requirement under Rule 34(b)(2)(E)(i) that documents, including ESI, be produced as they are kept in the usual course of business, the Rules require the United States (and Defendants) to organize and label their productions to correspond to the categories in the request.

City of Colton, at *48-49.

The Court addressed a practical issue in the case: there had been over 500 discovery requests from the Defendants.   The Court noted that identifying the ESI responsive to each request could be both “challenging” and “time-consuming.”  City of Colton, at *49.

The Defendants explained a “compromise” between the parties, where the United States would produce its ESI in native file format as a “substitute” for producing the ESI as it was kept in the usual course of business and instead of labeling its production to correspond to the Production Requests. City of Colton, at *49.

The Court accepted the compromise, stating:

“…because a simultaneous production in native format will provide Defendants with the metadata necessary to identify the provenance of each document and put it into its proper context, the United States may, at its option, provide Defendants with a copy of ESI in native format in any future production in lieu of labeling the production, in addition to producing ESI in TIFF or JPEG format to the Encore common repository pursuant to the parties’ current production protocol.”

City of Colton, at *49-50.

The sole footnote in the opinion stated the following on a blended production with metadata:

The Court strongly encourages the parties to consider the alternative of a new agreement concerning which metadata fields with TIFF/JPEG formats would provide identifying information sufficient to organize an ESI production that is usable for the receiving party and to amend their production protocol accordingly. Such an agreement would allow the United States to avoid the expense of producing ESI in both native and TIFF/JPEG formats, should it exercise that option, and would similarly allow Defendants to avoid the expense of reviewing ESI in two different formats and cross-referencing the productions. Furthermore, TIFF or JPEG productions with embedded metadata would enable Defendants to perform the various field searches they claim are necessary to make sense of the production and would be immediately available for use as exhibits without further processing. This would likely be more useful to Defendants than a report identifying the Production Requests to which documents are responsive with no contextualizing metadata.

City of Colton, at *50-51, fn 1.

Bow Tie Thoughts

I have been a Civil Procedure geek since my first day of law school. Magistrate Judge Suzanne Segal did an exceptional job reviewing past cases, the committee notes and applying practical knowledge on the issue of whether ESI is included in Federal Rule of Civil Procedure Rule 34(b)(2)(E)(i).

Many attorneys and judges have waded into the issue of whether Federal Rule of Civil Procedure Rule 34(b)(2)(E)(i) also applies to electronically stored information.  The plain language of the Rule says “documents.”  Moreover, Federal Rule of Civil Procedure Rule 34(b)(2)(E)(ii) specifically states “electronically stored information,” highlighting the difference between the two types of discoverable information.  Reading the two sections separately is something many lawyers have been doing since 2006.

On a fundamental level, a party producing any discovery, digital or paper, should not make a disorganized production.  As Judge Suzanne Segal stated, “…it is clear that parties are entitled under the Federal Rules to rationally organized productions so that they may readily identify documents, including ESI, that are responsive to their production requests.”  City of Colton, at *47.

For anyone who has done hours of document review, having the producing party label the production to correspond to the categories in the requests for production makes review (a little) less burdensome.

One way to accomplish labeling productions can be achieved in most of the review products on the market with issue coding.  While conducting review for ESI or documents responsive to a specific request, create issue tags at that time for the production requests.  For example, “Request for Production 7,” would be RFP007.  The three digit number system would allow for easier sorting in a data by discovery request.

When ESI is determined to be responsive to a request, code it accordingly with its request code.  At the time of production, add that field of information with the other extracted text/metadata fields to be produced.  Logging this information can increase organization for both the requesting and producing parties to a lawsuit.

The above is one way to help organize a production.  There are many other ways to use review tools and processing engines to generate information to label a production to comply with Rule 34(b)(2)(E)(i). Whatever is determined should be agreed upon before document review to increase efficiency.

Discovery wounds are sometimes self-inflicted.  Converting native files to static images and not producing the standard bibliographic extracted text and metadata can unintentionally drive up discovery review.  As a practical matter, everything that once was searchable has had that feature removed.  Additionally, fields of extracted text that could have populated a review database are now empty, waiting for a reviewing attorney to re-enter (at an hourly rate) what should have been produced as a matter of right.

The Court had a very good point in the one footnote about having two different production protocols in one case.  Virtually all of the review products on the market can handle blended productions of both ESI and static images such as TIFFs. Moreover, most processing software can produce discovery as native files and TIFFs if there is a need for a blended production.  However, this is far easier to do at the beginning of discovery, opposed trying to link a prior production in TIFF format to one with native files. While the technology can handle the different formats, the blended cross-productions having different fields of information can complicate review.