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Court Concludes That FRCP 34(b)(2)(E)(i) Requirements Do Not Apply to ESI

Posted on May 29th, 2015

The United States District Court for the District of Colorado considered a dispute regarding the scope of FRCP 34(b) in Arkansas River Power Authority v. Babcock & Wilcox Power Generation Group, Inc., Civil Action No. 14-cv-00638-CMA-NYW (D. Colo. May 5, 2015).

Defendant produced over 420,000 pages in TIFF format in response to Plaintiff’s requests, but did not provide an index of the documents. Plaintiff moved to compel because Defendant had both removed certain metadata fields prior to production and had failed to identify the location of the documents, the custodians, or the manner in which it was organized.

The parties disagreed regarding whether FRCP 34(b)(2)(E)(i) or (ii) should both apply. FRCP 34(b)(2)(E)(i) requires a party to produce documents in the usual course of business or organized and labeled to correspond to categories requested, whereas FRCP 34(b)(2)(E)(ii) states that if a party does not specify formatting, the production should be produced in the form in which it is ordinarily maintained or in reasonably useable form.

The court cited National Jewish Health v. WebMD Health Serv. Group, Inc., 2014 WL 2118585 at 6 (D.Colo. May 21, 2014), which held that FRCP 34(b)(2)(E)(i) only applies to hard documents, not ESI (noting that the ability to search ESI obviates the need to organize and label it). The court agreed, holding that FRCP 34(b)(2)(E)(ii) applies to Defendant’s ESI, and finding that Defendant had produced sufficient metadata fields to allow Plaintiff to search the data (including attachment, custodian, file type, file name, email send date, email recipient and sender, CC recipient, subject, location, and native file link).

The court held that Plaintiff could not support its contention that it could not search the ESI or that Defendant failed in its duty to provide ESI in a reasonably useable form as required under FRCP 34(b)(2)(E)(ii). The court also declined to order Defendants to produce additional metadata, as it had already produced the metadata agreed upon in the original discovery order.

ILS – Plaintiff Electronic Discovery Experts

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