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Archive for the ‘FRCP 34(b)’ Category

Case Blurb: Covad Communs Co.; Court examines form of production dispute

Posted by rjbiii on February 23, 2009

On August 4, 2008, [Producing Party] advised [Requesting Party] that it had additional responsive documents available for inspection and copying. [Requesting Party] apparently never responded to that letter, but instead wrote to [Producing Party] on August 18th and demanded that [Producing Party] produce those documents by August 22nd. In an August 20, 2008 conference call, [Producing Party] stated that it would make the 35,000 pages of e-mails that are responsive to [Requesting Party’s] request available in hard copy at [Producing Party’s] office for inspection and copying. [Requesting Party] took issue with [Producing Party’s] offer to produce the documents in hard copy as hard copy is not the documents’ native format. A few weeks later, on September 3, 2008, [Producing Party] offered to make the e-mails available in electronic format as TIFF files, but only on condition that [Requesting Party] agree to pay for the fees incurred by having one of Revonet’s legal assistants delete privileged or otherwise non-responsive documents from the electronic production set. [Requesting Paryt] objects to the form of defendant’s production because printed pages (and TIFF files) are not the native format for e-mails.

Thus, [Producing Party] insists that it be permitted to produce the e-mails in hard copy or as TIFF, provided Covad pays for the necessary deletions.

[…]

Rule 34 of the Federal Rules of Civil Procedure states that (1) the requesting party may designate the form in which the electronically stored information should be produced, and (2) if the request does not specify, then it should be produced in a form in which it is ordinarily maintained, or in a reasonably usable form. Fed. R. Civ. P. 34(b)(1)(C), 34(b)(2)(E)(ii). Thus, as just explained, the parties’ view of the preliminary inquiry here is whether [Requesting Party] designated the form in which the documents should be produced.

Rule 26(f), as amended, specifically requires the parties to discuss the form that production of electronically stored information should take. Fed. R. Civ. P. 26(f)(3)(C). This controversy predates that provision, and underscores its importance. It does not appear that [the parties] ever discussed what form this (or any other) production should take. Instead the parties seem to be making assumptions based on each others’ behavior: [Requesting Party] expecting its documents in electronic form because [Producing Party] hired a company to collect electronically stored information, and [Producing Party] assuming that they should produce 35,000 pages of e-mails in hard copy because [Requesting Party] produced its documents in that format. As there is no agreement, the parties invite me to turn to the language of the requests themselves to determine whether [Producing Party] can produce the e-mails other than in their native format.

The instructions to [Requesting Party’s] document requests ask that [Producing Party] “[p]roduce all documents in [its] possession, custody or control, as they are kept in the ordinary course of business, including with all staples and clips attached and with all associated file folders, dividers and labels.”

“Documents” are defined as:

[A]ny tangible thing upon which any expression, communication, representation or data has been recorded by any means including, but not limited to, handwriting, printing, photostating, photographing, on a computer, instant messages, magnetic impulse, or mechanical or electronic recording and any non-identical copies (whether different from the original because of notes made on such copies, because of indications that said copies were sent to different individuals than were the originals, or because of any other reason), including but not limited to working papers, preliminary, intermediate or final drafts, correspondence, memoranda, charts, notes, records of any sort of meetings, invoices, financial statements, financial calculations, diaries, reports of telephone or other oral conversations, desk calendars, appointment books, audio or video tape recordings, microfilm, microfiche, computer tape, computer disk, computer printout, computer card, and all other writings and recordings of every kind that are in your actual or constructive possession, custody or control.

Thus, I am supposed to determine by examining ancient boilerplate — designed for discovery in a paper universe — such nice questions as whether an e-mail, existing in a computer’s memory is a “tangible thing” and how e-mails are “maintained in the ordinary course of business.” While I have considered a similar provision in depth once before, I see no need to repeat that metaphysical exercise here because it is a waste of judicial resources to continue to split hairs on an issue that should disappear when lawyers start abiding by their obligations under the amended Federal Rules and talk to each other about the form of production. I would much prefer to carry out my duties in accordance with Rule 1, which provides that the rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”

More importantly, I do not need to parse words because no one is pretending that Revonet prints all of its e-mails or converts them to TIFF files on a daily basis no matter how ephemeral, meaningless or trivial their content. Therefore, though [Requesting Party’s] instruction is hopelessly imprecise and [Producing Party] could colorably argue that it should be interpreted to include several different formats, no reasonable person can honestly believe that hard copy is one of them. For hard copy to be an acceptable format, one would have to believe that [Producing Party], in its day to day operations, keeps all of its electronic communications on paper. There is no evidence in the record that [Producing Party] operates in this manner, and no suggestion that such a practice would be anything but incredible. Therefore, even though I can’t say I know what [Requesting Party] has asked for, I can say what they have not asked for, and that is what they got.

Covad Communs. Co. v. Revonet, Inc., 254 F.R.D. 147 (D.D.C. 2008) (internal citations removed).

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Posted in 4th Circuit, Case Blurbs, D.D.C., Form of Production, FRCP 26(f), FRCP 34(b), In the Ordinary Course of Business, Magistrate Judge John M. Facciola | Leave a Comment »

Case Blurb: Perfect Barrier; “native” e-mail format production appropriate

Posted by rjbiii on June 17, 2008

[Producing Party] produced the emails in electronic form on an disc that is computer accessible. Such discovery is clearly considered electronic discovery. Under Fed.R.Civ.P. 34(b)(2)(E)(ii),
[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.
[Requesting Party] did not request that the emails be produced in a particular form, yet [Requesting Party] now asks this Court to force [Producing Party] to produce the electronic emails as Static Images with a bates-number identifier. [Producing Party] objects to this request because it would cost a substantial sum of money to convert the documents from the form in which the documents are normally kept, Native format, to Static Images.

[Producing Party] has already produced the emails on a disc in Native format. [Requesting Party] maintains the email documents in such a format. Fed.R.Civ.P. 34 only requires [them] to submit the emails in the format in which it keeps them, Native format, and nothing more. While it may be more convenient for [Requesting Party] to have the emails as Static Images, Fed.R.Civ.P. 34 does not provide that convenience is a basis for requiring electronic discovery to be produced in a different format than normally maintained. If [Requesting Party] wanted the emails as Static Images, it should have specified this request in its requests for production, which it did not do.

Furthermore, this Court finds that the emails produced on an electronic media such as disc is reasonably usable. [Requesting Party] can access, examine, and even print the communications. While [Requesting Party] may prefer to have them as Static Images, the burden to convert the emails to Static Images remains with [Requesting Party]. [Producing Party] complied with Fed.R.Civ.P. 34(b)(2)(E) and is required to do nothing more.

Perfect Barrier LLC v. Woodsmart Solutions Inc., 2008 WL 2230192 (N.D. Ind. May 27, 2008 )

Posted in 7th Circuit, Case Blurbs, Cost of Discovery, Cost Shifting, Discovery Requests, Duty to Produce, email, Form of Production, FRCP 34, FRCP 34(b), Magistrate Judge Christopher A. Nuechterlein, N.D. Ind. | Tagged: , | Leave a Comment »

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).

Posted in 9th Circuit, Case Blurbs, Form of Production, FRCP 34(b), N.D. Cal. | Tagged: , | Leave a Comment »