Must Plaintiffs Organize ESI Produced in the Usual Course of Business?
An ever present issue in eDiscovery and discovery in general, is the question of how to best balance the burden and expense of reviewing documents. This is an issue the court addressed in FDIC-R v. Walter B. Bowden, et al., Case No. CV413-245 (S.D. Ga. June 6, 2014).
The parties endeavored, but failed to agree on a Joint Protocol for Electronically Stored Information (ESI). Plaintiff, already having spent $614,000 to scan 153.6 million pages to tender to the defense, moved to implement its own ESI protocol that would “balance the burden and expense of discovery among the parties.” Defendants insisted that Plaintiff should shoulder the burden and expense of reviewing the documents and determining their responsiveness.
The court addressed the governing standards that concerned manner of document production, formatting disputes, and digital document production costs. In balancing burdens and expenses, the court found that Plaintiff should meet and confer with Defendants to reach an agreement upon a set of reasonable search terms, but that Plaintiff was not required to assist the defendants in organizing any requested ESI. While Plaintiff is required to respond to Defendant’s discovery and inspect its own records to do so, it need only produce the documents that are responsive to Defendant’s request.
The court also ruled that Plaintiff may deploy suitable search terms to satisfy its initial disclosure requirements and respond to forthcoming Rule 34 document requests. However, in using “Relativity,” if Plaintiff does not product the bank documents as they were kept in the normal course of the bank’s business, then it is not entitled to produce them without organizing and labeling them to conform to Defendant’s discovery requests. Next, the court agreed that the party responding to discovery requests was responsible for the initial costs of reviewing and preparing the documents for inspecting and copying, but not for the copying costs of voluminous materials. Lastly, the court endorsed the use of predictive coding, also called automated issue coding, as a means of more expedient discovery.
The lesson to take away from this case falls on the notion that discovery in federal court is a self-managed process, and cooperation is a necessity for meaningful and efficient discovery. It is also interesting to note the move towards predictive coding, a topic that we focused on in a previous blog and will be addressing again in the future.