• Form Over Substance?
  • December 7, 2007 | Authors: Rodney A. Satterwhite; R. Eric Bilik; Anne Bentley McCray; Kenneth K. Dort
  • Law Firms: McGuireWoods LLP - Richmond Office ; McGuireWoods LLP - Jacksonville Office ; McGuireWoods LLP - Richmond Office ; McGuireWoods LLP - Chicago Office

    In E-Discovery situations, often the volume of documents to be produced is given much attention, since the amount of electronically stored information (“ESI”) at issue can have a direct effect on the cost of production. However, the form of production can also be an important, though more often overlooked, issue. Rule 34(b) provides the manner in which a party is to produce ESI. Specifically, Rule 34(b)(i) provides that unless the parties otherwise agree or the court otherwise orders, “a party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.” Fed. R. Civ. P. 34(b)(i). But as with any other aspects of litigation, when there are two options, you will inevitably find parties willing to argue over which is the right choice. So under Rule 34(b), who gets to decide how the documents will be produced: the producing party or the requesting party?

    In MCP Ingredients, Inc. v. Mars, Inc., No. 06-2318-JWL-DJW, 2007 WL 3010343 (D. Kan. Oct. 15, 2007), the plaintiff sought, and the defendant produced, 48,000 pages of electronically stored information and hard documents. The defendant, however, chose to produce them as they were maintained “in the usual course of business,” and refused to match each document to one of the plaintiff’s specific document requests. Plaintiff, therefore, sought an order requiring the defendants to identify by bates number the particular documents that were responsive to each of plaintiff’s requests. The plaintiff complained that the production “in the usual course” created a “huge burden” on plaintiff in trying to locate and understand the defendant’s documents.

    The court rejected plaintiff’s argument, holding that Federal Rule of Civil Procedure 34(b)(i) “makes it very clear that the producing party must either produce the documents as they are kept in the usual course of business or organize and label them to correspond with the categories in the request.” MCP, 2007 WL 3010343, at *3 (emphasis in original). Under Rule 34(b)(i), the producing party has no duty to organize or correlate the documents to each particular request in which they are responsive if the producing party produces documents in the order in which they are kept in the usual course of business. Id. To hold otherwise would impose a difficult and unnecessary additional burden on the producing party that would not serve any substantial purpose. Id. at *4 (citing 8A Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2213).

    Thus, for a requesting party seeking the production of ESI from an opponent, the lesson from MCP is to be careful what you ask for. If your requests generate large volumes of ESI, you might get the information in a largely disorganized form – if that’s how they are kept in the ordinary course of business (and in many organizations, that’s exactly how they are kept). This can result in significant additional costs in reviewing and understanding the documents produced.

    The MCP court offered a partial solution consistent with the theme found throughout the new Federal Rules: where possible, parties should agree in advance to such matters. This may be particularly helpful when both parties are large entities with significant volumes of documents, as there will be a mutual incentive to reach an agreement. However, where one party will be producing significantly more ESI than the other, such as in many types of employment litigation, there may be less incentive to agree to produce ESI in a specific manner. Thus, early attention to these matters is particularly important, and should be added to the checklist of items for your counsel to address during early discussions (such as the Rule 26(f) conference) with opposing counsel.