Post Process

Everything to do with E-discovery & ESI

Case Blurb: Levi Strauss; Court discusses ‘duty’ to electronically re-produce paper production

Posted by rjbiii on November 14, 2007

Plaintiffs contend that it is “black-letter law” that LS & Co. is obliged to now re-produce its entire [paper] document production in electronic form. However, the cases they cite merely acknowledge the principle that electronically stored information falls within the definition of “document” under Fed.R.Civ.P. 34. See, e.g., Crown Life Ins. Co. v. Craig, 995 F.2d 1376, 1382-83 (7th Cir.1993) (“[T]he Advisory Committee notes to the 1970 amendment of Federal Rule of Civil Procedure 34 make clear that computer data is included in Rule 34’s description of documents.”); Rowe Entertainment, Inc. v. The William Morris Agency, Inc., 205 F.R.D. 421, 428 (S.D.N.Y.2002) (“Electronic documents are no less subject to disclosure than paper records.”); Playboy Enterprises, Inc. v. Welles, 60 F.Supp.2d 1050, 1053 (S.D.Cal.1999) (“The Court finds that by requesting ‘documents’ under Fed.R.Civ.P. 34, Plaintiff also effectively requested production of information stored in electronic form.”).

LS & Co. has cited some authority (albeit, one case is unpublished) indicating that, under the former version of Fed.R.Civ.P. 34, it was not obliged to produce its documents in electronic and hard copy form. See India Brewing, Inc. v. Miller Brewing Co., 237 F.R.D. 190, 194 (E.D.Wis.2006) (“A party may request information in a specific electronic format, but if it instead simply asks for ‘documents,’ adopting the definition in Rule 34(a), production in electronic format is not required.”); Northern Crossarm Co., Inc. v. Chemical Specialties, Inc., No. 03-C-415-C, 2004 WL 635606 *1 (W.D.Wis., Mar.3, 2004) (“If a party produces its electronic information in a hard copy format that mimics the manner in which that information is stored electronically, then that party has not disobeyed Rule 34.”).

Federal Rule of Civil Procedure 34, as amended, now allows a party to “specify the form or forms in which electronically stored information is to be produced.”FED.R.CIV.P. 34(b). However, plaintiffs do not seem to contend that those amendments apply here. At any rate, the amended Fed.R.Civ.P. 34 provides that where, as here, “a request does not specify the form or forms for producing electronically stored information,” then “a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable.”FED.R.CIV.P. 34(b)(ii) (emphasis added). Further, unless the parties agree or the court otherwise orders, “a party need not produce the same electronically stored information in more than one form.”FED.R.CIV.P. 34(b)(iii).

Schmidt v. Levi Strauss & Co., 2007 WL 2688467 (N.D. Cal. Sept. 10, 2007) (Do not cite).


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