It is essential when drafting plaintiff electronic discovery requests to be clear on what format is being sought regarding electronic data in a defense production. In the federal courts, Fed. R. Civ. P. 34(b)(2)(E)(i) holds electronic discovery production to be proper when parties “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.”
In Mills v. Billington, Civil Action No. 04-CV-2205 (FJS-AK)(D.C. August 21, 2013), plaintiffs, a group of minority employees at the Library of Congress, filed suit against defendant, the Librarian of Congress, alleging employment discrimination. Plaintiff sent discovery requests, seeking electronic data from defendant regarding its employees and hiring practices. Additionally, they requested “applicant flow data,” which is a tool the federal government uses to collect data on applicants and employees. However, the plaintiff discovery requests asked defendants to produce the data in a “new format different from the way it initially existed.” The court references the requests as seeking “electronic personnel data with data keys,” and “a data table showing…the following data for each vacancy.”
Citing Rule 34, referenced above, the court notes that the defendant is only required to produce documents and data either in the regular course of business or organized and labeled to respond to request. This rule does not require defendant to produce data in a different format. However, the court noted that the “technological facts in this case” led to “miscommunication and confusion” for everyone: plaintiffs, the defendant and the court.
The court came up with a solution to the parties’ differences by allowing the plaintiffs to subpoena the third party service provider, who actually possessed the electronic records, to respond to the requests. The remaining question is: who should pay for this production? The court left that open for another day, to hold a new hearing after the cost estimate from the third party is delivered, to determine “where the financial burden shall lie.”