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District Court Reconsiders its eDiscovery Order Under FRCP 34(b)(2)(E)(i) and (E)(ii)

Posted on March 21st, 2014

In our last post, we reviewed the discovery facts in the case The Anderson Living Trust v. WPX Energy Production, LLC et al., No. CIV 12-0040 JB/LFG(D.N.M. March 6, 2014). A dispute arose regarding whether a party must, under FRCP 34(b)(2)(E)(i), organize the electronically stored information (ESI) to correspond to the categories of the request, or whether compliance with FRCP 34(b)(2)(E)(ii) is sufficient. FRCP 34(b)(2)(E)(ii) allows for ESI to be in the form the party requested or in another reasonably usable form.

The court had ruled in favor of Plaintiffs and required the Defendants to further organize the PDF files with Bates stamping and have them correspond with the production requests. However, the court was candid about its uncertainty, and Defendants filed a Motion to Reconsider. They argued that (E)(i) does not apply to ESI and, in the alternative, if it did, the production met the requirements nonetheless.

A wrinkle in this case was that the majority of the defense production was hard copy documents that had been scanned into PDF files, in accordance with the prior agreement. So is this production hard copy or ESI? Does FRCP 34(b)(2)(E)(i) or (E)(ii) apply?

The court noted that the hard copy documents were scanned and converted into PDF files as a stipulation between the parties before the dispute arose. The court expressed doubt that Plaintiffs could request PDF format, then attempt to impose the (E)(i) hard document rules upon Defendants.

After a thorough analysis of the history and amendments to FRCP 34, the court found that requesting parties are entitled to the guarantees of (E)(i) or (E)(ii), but not both. As the hard documents were converted to ESI, (E)(ii) is the proper rule and Plaintiffs cannot request the benefits of (E)(i) apply. The court granted the Motion for Reconsideration and stated the Defendant’s original production was sufficient; no additional organizing or labeling was necessary.

ILS – Plaintiff Electronic Discovery Experts

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