Be Specific If You Are Going to Attack the Form of Production

Oh, Rule 34. You are the code section that keeps giving.

Under Federal Rule of Civil Procedure Rule 34(b)(2)(E)(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.”

A Plaintiff brought a motion to compel the opposing party to organize and label their production to correspond to the categories in the Plaintiff’s Requests for Production. Things did not go well for the Plaintiff’s motion. Hall v. Habul, 2015 U.S. Dist. LEXIS 87545, *15-16 (M.D. La. July 6, 2015).


The Defendant’s production was Bates labeled, but the Plaintiff still took the position that the production did not comply with Rule 34(b)(2)(E)(i). Id. Unfortunately for the Plaintiff, there was no further explanation as to why the production did not comply with the Rules. The Court did not know if the production was of electronically stored information, scanned paper documents, or a blended production. Id. Moreover, the Plaintiff did not explain why they did not believe the production was in the usual course of business, which is one of the production options under Rule 34(b)(2)(E)(i). Hall, at *16. As such, the Court could not determine if Rule 34(b)(2)(E)(i) was violated. Hall, at *15.

The only assertion the Court had to work with was the Defense attorney stating the “documents” were produced in the usual course of business. Hall, at *16. There was nothing in the record to refute this statement, thus the Court concluded the Defendant complied with Rule 34(b)(2)(E)(i). Id.

Bow Tie Thoughts

If you are going to challenge a production, be sure to specifically state what is wrong with the production. This could be the request for production called for native file format and static PDF’s were produced instead. There are many ways a production could not comply with the Rules.

I know many attorneys who produce ESI in the “usual course of business,” thus do not believe in labeling their productions. I know a few who revel in this strategy, wanting to let the other side figure out what records correspond to each discovery request. These attorneys often view the opposing party as a zombie hoard to be destroyed without mercy.

Being a good anal-retentive Virgo, I have a different view of document review. I believe in setting up issue coding to correspond to the Requests for Production. If you really want to get organize, have the RFP’s correspond to your Causes of Action or Defense, so you know exactly what supports your arguments and responds to the opposing party. This is excellent for being able to quickly retrieve records for review in preparing discovery responses or motion practice.

Most review applications allow coding fields to be exported out as an Excel file or CSV. A producing party can comply with Rule 34(b)(2)(E)(i) by exporting fields in order of discovery requests for issue tagging (such as an RFP00001), followed by the Document Identifier, such as Bates, Docid, or Production Number, and relevant metadata, perhaps even the system file pathway to show how the origin of the record.

Parties are within their rights to simply produce discovery as it is maintained in the ordinary course of business. I prefer having them labeled, but that is both my preference and one option to specify under the Rules.


3 thoughts on “Be Specific If You Are Going to Attack the Form of Production

  1. I don’t know if comments are accepted, but here goes: I believe that every discussion of form of production of electronic files should point out that Rule 34(b)(2)(E)(ii) is the exclusive provision that applies to production of ESI.

  2. It is always interesting to me to see how rules regarding production written for paper-based storage and retrieval systems have been bent to address ESI. The original rule was intended to provide two options for organizing a production – 1) as maintained by the producing party or 2) as requested. This rule was first bent to force litigants to generate native or “near native” productions (probably wrongly) and also to force producing parties to produce compound documents or document “families,” typically an email and its attachments, where one part of the family was responsive (and rightly so.) With the 2006 amendments and state court corollaries, the “format” of production (as opposed to the organizational structure) came into play with “as maintained” vs. “reasonably useable” form, neither of which really solves the problem of “native” format. I don’t know what is meant by a static PDF, but since OS X provides for PDF output for any user-created content, including iWorks files, it is reasonable to conclude PDF is “native” format for Mac users. Until people understand that “native” is binary and pretty much useless to most mere mortal lawyers, and that any other format is a proscribed rendering of that binary data to be useable, we will continue to have such useless, costly and inefficient fights that make “eDiscovery” a dirty word for most litigants and many lawyers.

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