Rule 34: As Basic As You Get

Magistrate Judge Paul Grewal is one of the new heroes of eDiscovery jurisprudence. In Venture Corp. Ltd. v. Barrett, the good Judge opened with the following on Rule 34:

Most lawyers (and hopefully judges) would be forgiven if they could not recite on demand some of the more obscure of the Federal Rules of Civil Procedure. Rule 80 (Stenographic Transcript as Evidence) and Rule 64 (Seizing a Person or Property) come to mind. But Rule 34 (Producing Documents, Electronically Stored Information, and Tangible Things) is about as basic to any civil case as it gets. And yet, over and over again, the undersigned is confronted with misapprehension of its standards and elements by even experienced counsel. Unfortunately, this case presents yet another example.

Venture Corp. Ltd. v. Barrett, 2014 U.S. Dist. LEXIS 147643, 1 (N.D. Cal. Oct. 16, 2014).

Here is what happened: The Defendant served discovery requests on the Plaintiff and wanted the discovery and organized and labeled to identify the requests to which they were responsive; The Plaintiff did not want to do that and instead produced 41,000 pages of discovery, which ended with the Court ordering re-production for not following either Rule 34(b)(2)(E)(i) or (ii). Venture Corp. Ltd., at *1-2.

The Tactical Document Dump

Federal Rule of Civil Procedure Rule 34 is supposed to prevent the “document dump,” which was the attorney Cold War equivalent of a doomsday weapon.

Its deterrent was the threat of the opposing side also unleashing a document dump, introducing mutually assured destruction in civil discovery.

Discovery is not supposed to be an experiment in game theory. Discovery must be produced one of two ways under Rule 34(b)(2)(E):

1) “[A] party must produce documents as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the request.” 

2) “[I]f 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. A party need not produce the same electronically stored information in more than one form.”

Venture Corp. Ltd., at *2-3.

Apparently no one saw War Games or the Guns of August before producing discovery. This case had a telephonic meet and NOT confer where the Plaintiff claimed the Defendant agreed to accept PDFS or native files in bulk; the Defendant denied such an agreement. Venture Corp. Ltd., at *3.

The Plaintiff produced on a flash drive and by email approximately 41,000 of PDF’s and native files with no index, table, or anything but folders with the aforementioned files. Id.

The Court explained that the language of Federal Rule of Civil Procedure Rule 34(b)(2)(E)(i) is clear: if documents are not organized and labeled to correspond to the categories in the request, they must be produced as they are kept in the usual course of business. Venture Corp. Ltd., at *5.

The Plaintiff did not comply with Rule 34(b)(2)(E)(i).

If a party that elects to produce discovery as it is kept in the ordinary course of business, the producing party has the burden to prove their production was made in such a manner beyond a mere claim. Venture Corp. Ltd., at *5-6.

There was substantial he said/she said about the alleged agreement on the organization of the production, with the Plaintiff claiming in an affidavit that Defendant agreed to the production of blended native files and PDFs instead of with a load file and index. Venture Corp. Ltd., at *6-7.

The Court noted that even if there was an agreement on the form of production under Rule 34(b)(2)(E)(ii), that would not absolve the producing party of its obligation to produce ESI as it is kept in the ordinary course of business under Rule 34(b)(2)(E)(i). Venture Corp. Ltd., at *7.

Judge Grewal explained the distinction between Rule 34(b)(2)(E)(i) and (ii):

This distinction matters. Form under subsection (ii) is about whether the production should be native, near-native, imaged as PDF (or more commonly, as TIFFs accompanied by load files containing searchable text and metadata) or in paper (printed out). Providing information about how documents and ESI are kept under subsection (i) “[a]t a minimum . . . mean[s] that the disclosing party should provide information about each document which ideally would include, in some fashion, the identity of the custodian or person from whom the documents were obtained, an indication of whether they are retained in hard copy or digital format, assurance that the documents have been produced in the order in which they are maintained, and a general description of the filing system from which they were recovered.”

Venture Corp. Ltd., at *7-8.

There was no agreement on the form of production, thus the Plaintiff Producing Party had a duty under Rule 34(b)(2)(E)(ii) to show that the production was either 1) as the ESI was ordinarily maintained or 2) in a reasonable form. Venture Corp. Ltd., at *8.

Judge Grewal directly summed up the reality with such a production, that “there is no serious question that a grab-bag of PDF and native files is neither how the Ventures ordinarily maintained the documents and ESI nor is ‘in a reasonably usuable form.’” Id.

The Court ordered the producing party to do the following as a remedy:

(1) Either organize and label each document it has produced or it shall provide custodial and other organizational information along the lines outlined above and

(2) Produce load files for its production containing searchable text and metadata.

Venture Corp. Ltd., at *8-9. [Bold emphasis in original].

Bow Tie Thoughts

Random files make document review a nightmare. I am a big fan of Rule 34(b)(2)(E)(i) because I want discovery organized to correspond to the responsive discovery requests.

It is very easy to set up your review database so there is an entire column with the request for production numbers, empowering the lawyer to issue code responsive discovery to each request. This column can be included in the production to the requesting party.

Some see this as extra work and unnecessary. I see it as a way to organize document review to correspond to the discovery requests in order. Moreover, from a producing party point of view, you want to know what discovery was produced as it relates to discovery request. Any of today’s review applications can issue code according to discovery request if document review is planned, which empowers the producing party to know exactly what is being produced to the opposing party.