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Are Hard Copies and ESI Subject to Different Litigation Production Standards?

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As is often the case in modern litigation, a discovery dispute ensued In Kissing Camels Surgery Center, LLC v. Centura Health Corp., et al. 12-cv-03012-WJM-NYW. (D. Colo. Jan 22, 2016), after the defendant hospitals served additional document requests on the plaintiff outpatient surgery providers even after they produced a terabyte of electronically stored information (ESI).


The court faulted both parties for the discovery dispute. However, it still ordered the surgery centers to do some extra work and specifically identify documents that corresponded to the hospital’s further discovery requests. In doing so, the court addressed recent changes to the Federal Rules of Civil Procedure and also explained its belief that electronic documents are subject to different production standards than hard copies.


Under New Rules, Discovery Objections Must be Made With Specificity

The surgery centers objected to the additional document requests arguing they were too broad and duplicative of prior requests to which they had already responded.


The court agreed that the document requests were too broad, but also faulted the surgical centers for relying on “boilerplate” objections. Noting that recent changes to the Federal Rules of Civil Procedure require objections to document requests to be made with “specificity,” the court held that the surgical centers could not object by “simply pointing to [its prior document production] without providing any type of guidance to Defendants as to where in the production such responsive documents are to be found.”


To figure out how to handle the overly broad document requests and the equally vague objections, the court examined what it believed to be differing obligations of litigants when they produce ESI rather than hard copy documents.


ESI and Hard Copy Documents–Subject to Different Standards Under Rule 34?


The court noted that Federal Rule of Civil Procedure provides two different directives for the format of responses to document requests:


Federal Rule of Civil Procedure 34(b)(2)(E)(i) requires a party to produce documents as they are “kept in the usual course of business” or “organize and label them to correspond to the categories in the request.”


However, under Fed. R. Civ. P. 34(b)(2)(E)(ii), if the requesting party does not specify a preferred form of production, “a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.”


The court concluded that “[s]ubparagraph (E)(i) applies only to the production of hard-copy documents, while subparagraph (E)(ii) exclusively governs the production of ESI. . .”


Following other federal courts, the opinion stated that different subsections of Rule 34 govern the production of hard copy documents and ESI because the searchability of ESI permits requesting parties to organize it as they see fit:


The option to produce electronically stored information in a reasonably usable form is not precisely the same as the option to produce hard-copy documents organized and labeled to correspond to the request, but it is functionally analogous because producing electronically stored information in a word searchable format can enable a party to locate pertinent information, regardless of any index or labeling provided by the responding party.



Despite concluding that ESI need only be produced in a reasonably usable form (i.e. searchable) and acknowledging the ESI at issue was searchable, the court still ordered the surgical center to surgical centers to provide additional information identifying information already produced because it was “no ordinary case.”


Not All Courts Agree Production of ESI and Hard Copies Differ

Despite the ruling in this case, not all courts agree that different format requirements apply to hard copy documents and ESI. See, e.g., Diesel Mach. Inc. v. Manitowoc Crane, Inc., No. CIV 09-4087-RAL (D.S.D. Feb. 16, 2011)(ESI not produced in usual course of business must be labeled to correspond to categories in the requests); SEC v. Collins & Aikman Corp., 256 F.R.D. 403, 413 (S.D.N.Y. 2009)(Scheindlin, J.)(ESI “which is by its very nature not routine or repetitive[,] cannot fall within the scope of the `usual course of business,'” and requiring party to label their responsive ESI by category); MGP Ingredients, Inc. v. Mars, Inc., No. 06-2318-JWL-DJW (N.D.N.Y. Oct. 15, 2007)(stating that (E)(i) controls the production of ESI).


Takeaway: Specify the Form In Which You Want to Receive Documents


Want to avoid discovery disputes? Specify the preferred format of production in your document requests.


Posted on March 30, 2016 in E-Discovery, Electronically Stored Information (ESI), ESI Production, FRCP, Proportionality

About the Author

Chad Main is an attorney and the founder of Percipient. Prior to founding Percipient, Chad worked as a litigator in Los Angeles and Chicago. He is a member of the Seventh Circuit Electronic Discovery Pilot Program Committee and may be reached at cmain@percipient.co.