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Sorting Out FRCP 34(b)(2)(E)(i) and (E)(ii): Do Both Apply to ESI?

Posted on March 19th, 2014

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 discovery dispute arose regarding Fed.R.Civ.Pro. 34(b)(2)(E). In response to plaintiff electronic discovery requests where the parties had agreed upon the format, the defendants scanned approximately 20,000 hard copy documents into fully searchable PDF files. The defendants also produced accounting electronic data in native file format with metadata, complete with Bates stamping per spreadsheet.

The dispute arose because Plaintiffs wanted the production be organized and labeled to correspond to the categories in their discovery requests. This would require Defendants to review and label all 20,000 documents (now in searchable PDF form) and the additional ESI. Defendants objected to this request, claiming they had fully complied with the agreed-upon discovery order and did not wish to further organize the production.

The district court was initially uncertain about ESI and this rule, and said it would require Defendants to indicate by Bates stamping the documents responsive to the requests. The court cited 34(b)(2)(E)(i) and said that it understood it to mean that documents turned into electronic data would fall under this category, but the court was unsure and wanted to research ESI and discovery under the rules. It conceded that some prior case law may conflate the two rules. Defendants filed a Motion for Reconsideration to the court’s ruling that they must Bates stamp all the documents now in searchable PDF form.

So does (E)(i) apply to ESI, or only hard copy documents? Below is the text of the rule:

(E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:

(i) A party must 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;

(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms

We will continue our discussion of this rule and the Court’s reasoning in ruling upon the Motion to Reconsider in our next post!

ILS – Plaintiff eDiscovery Experts

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