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The Choice is Yours: ESI Production Under FRCP 34

Posted on May 24th, 2017

ESI production under FRCP 34Federal Rule of Civil Procedure 34(b)(2)(E) is all about choice: a party can choose to produce electronically stored information (ESI) in the usual course of business, or it can be organized and labeled to respond to the corresponding discovery requests. A seemingly-simple rule, FRCP 34 is often cited as the source of discovery disputes. A few lessons to glean from the rule and interpretive case law:

  1. A party does not have to reproduce or redo its production when it complies with one of the choices offered by FRCP 34, even if the requesting party later objects. (The rule itself, FRCP 34(b)(2)(E)(iii), states a party need not produce ESI in more than one form.)
  2. The requesting party, if seeking a specified format under FRCP 34(b)(1)(C), (such as native file format or PDF), should specify this at the outset or risk waiving such a formatting request at a later time.
  3. A party does not have to create new documents or data to comply with FRCP 34.

A Review of Recent FRCP 34 Case Law:

  • Excel Enterprises, LLC v. Winony PVD Coatings, LLC, Case No. 16-19 (N.D. Ind., Feb. 17, 2017). Plaintiffs complained that Defendant’s production did not comply with FRCP 34 requirements, since the information was not produced as maintained in the ordinary course of business, nor was the information in the production categorized or labeled to reflect the production requests. Although the Court originally ordered Defendant to reorganize the production, it later granted a Motion for Reconsideration after  Defendant presented evidence that the original production had been made in the form that the information was maintained in the ordinary course of business. The Court accepted Defendant’s argument that Plaintiff was not prejudiced by the form of the production.  The Court made further findings that Plaintiff had failed to show that the production as rendered was prejudical to Plaintiff, or that the burden to Defendant of a re-production would be proportional to the needs of the case.
  • Mora v. Zeta Interactive Corp., et. al., Case No. 16-00198 (E.D. Cali., Feb. 10, 2017). In this class action lawsuit regarding violations of the Telephone Consumer Protection Act (TPCA), Plaintiffs sought production of call logs.  Defendants claimed such call logs did not currently exist and would be unduly burdensome for Defendants to create and produce. Defendants offered for Plaintiffs to hire an expert to run Defendants’ source code and view the resulting data on a secure computer. The court noted FRCP 34 does not require a party to create a document that does not exist, but that a party must produce ESI that is reasonably accessible. The court ordered Defendants to run the source code and produce the call log for Plaintiffs.
  • Mudbug, Inc. v. Bloomin’ Brands, Inc., Case No. 15-5265 (E.D. La., Jan. 11, 2017). Defendant complained that Plaintiff’s ESI production, comprised of data contained on a a thumb drive,  did not include sufficient information to identify what information on the drive correlated to specific requests. The first observation made was that the Defendant’s production requests were “competing” in terms of the framing  of the requests.  On the one hand, the requests sought production in the ordinary course of business, but on the other hand the requests also specified that the data be produced in PDF or Word format. Additionally, adding yet another option in its Motion to Compel, Defendant then sought native file format. The Court noted that since Defendant was the “master of the production”, it should therefore be satisfied by either response to the formats specified in the original production requests (ordinary course of business or PDF/Word format).  However, the court did offer some consolation to Defendant by ordering Plaintiff to be more specific in identifying which documents were responsive to each request.
  • Wai Feng Trading Co., Ltd. et. al. v. Quick Fitting, Inc., Consolidated Case Nos. 13-056 and 13-033 (D. R.I., Sept. 30, 2016). After three years of discovery disputes, Defendants objected and sought a reproduction of Plaintiff emails in native file format. However, the magistrate judge noted that the Defendants did not specify any formatting in its production request, as is permitted by FRCP 34, and therefore overruled its objection.
  • State Farm Mutual Automobile Insurance Company v. Universal Rehab Services, Inc., et. al., Case No. 15-10993 (E.D. Mich., Sept. 26, 2016). Defendant objected to the organization of Plaintiff’s ESI production under FRCP 34. Plaintiff noted it provided a cover letter identifying the documents by category and included an electronic file containing data about the documents. The court agreed Plaintiff had fulfilled its duties under FRCP 34.
  • Sky Medical Supply, Inc. v. SCS Support Claim Services, Inc. et. al., Case No. 12-6383 (E.D. N.Y., Sept. 7, 2016). Plaintiffs produced electronic data discovery on two CD-ROMs, and Defendants objected because the electronic folders were not organized to correspond with discovery requests. The court disagreed and held the production complied with FRCP 34.  The court found that the ESI was produced as maintained in the ordinary course of business, which does not require a party to correlate records to correspond with discovery requests.
  • Rocket Real Estate, LLC et. al. v. Maestres, Case No. 15-62488 (S.D. Fla., Aug. 24, 2016). The court denied a request for forensic inspection of an iPad to ascertain metadata from a document produced. The court noted the iPad was not requested under FRCP 34, which is a condition precedent to compelling inspection. Finally, the request was untimely as the underlying document was produced over six months before the Motion to Compel was filed.

Consult with Our Plaintiff eDiscovery Experts Before the Case is Filed

Disputes under FRCP 34 easily stem from poorly-drafted discovery requests at the onset of a case. This means that the earlier plaintiff attorneys get electronic discovery experts involved in litigation holds and discovery requests, the better. We only serve the plaintiff’s bar for discovery purposes in complex class actions, MDLs and international litigations. Reach out by calling us directly at (888) 313-4457 or via email at

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