With increasing frequency, courts are being asked to compel parties responding to document requests to label electronically stored information (ESI) to correspond to the document requests for which the information is produced. But, do the Federal Rules of Civil Procedure even require such labeling? As with all good legal questions, the answer is “maybe” depending on how your judge interprets Rule 34(b)(2)(E).
The format of documents and ESI produced in response to document requests is governed by Rule 34(b)(2)(E) which provides:
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; and
(iii) A party need not produce the same electronically stored information in more than one form.
In a case pending in the United States District Court for Nevada, American Gen. Life Ins. v. Vistana Condominium Assoc., Case No. 2:12-cv-01234-JAD-NJK (May 16, 2014), a litigant sought an order compelling a party producing documents to identify the documents corresponding to each request. Relying on subsection (E)(i) of Rule 37(b)(2), the court held that because the documents were produced as they were received and kept in the ordinary course of business, the producing party did not need to label them to correspond to individual requests. The court stated that section (E)(i) gave the producing party a choice: “a party must either organize the 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.”
Another judge recently refused to order a party to label ESI but not under subsection (E)(i) of Rule 37, but under (E)(ii), because, according to the opinion, ESI is not subject to the requirement in Rule 37(b)(E)(i) that documents be produced as they are kept in the ordinary course of business or labeled to correspond to individual requests. Judge James O. Browning of the United States District Court for New Mexico concluded in Anderson Living Trust v. WPX Energy Production, LLC, Case No. CIV 12/0040 JB/LFG (March 6, 2014) that “Rule 34(b)(2)(E)(i) governs hard copy documents, and (E)(ii) governs ESI, with no overlap between.” Therefore, because section (E)(i) does not control the production of ESI, parties are under no obligation to produce it as it is kept in the ordinary course of business or label the information to correspond to the document requests. Rather, subsection (E)(ii) provides that 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.
In his opinion, Judge Browning examined amendments to Rule 37(b)(2)(E) in some detail because of “confusion among courts and commentators as to the meaning and relationship between (E)(i) and (E)(ii), hinging in large part on whether the term ‘documents’ as used in E(i), includes ESI.” Judge Browning concluded (E)(i) does not govern ESI because amendments in 2006 added subsection E(ii) which specifically addressed production of ESI. Citing committee notes from the 2006 amendments, Judge Browning noted that “[t]he drafters of the e-discovery amendments to Rule 34 recognized that the procedures in subsection (E)(i), which were written to apply to hard-copy documents, did not neatly fit ESI and had to be modified to apply to ESI. . . . Accordingly, the rule makers crafted alternative, mutually exclusive, procedures in subsection (E)(ii) that are designed to apply specifically to ESI, not to supplement the procedures in subsection (E)(i) [requiring production of hard-copy documents as kept in business or labeled to corresponding categories].”
Judge Browning noted that judges and lawyers often interpret “documents” to include ESI, but concluded that as a result of the addition of E(ii) to Rule 34 that specifically addressed production requirements for ESI, it is distinguishable from general “documents.” Accordingly, Judge Browning wrote that “while (E)(i) . . . gives the producing party the right to choose to produce [hard copy documents as they are kept] ‘in the usual course of business’ or ‘label[ed] . . . to correspond to the categories in the request,’ (E)(ii) puts the ball in the requesting party’s court by first giving them the option to ‘specify a form for producing’ ESI. It is only if the requesting party declines to specify a form that the producing party is offered a choice between producing in the form ‘in which it is ordinary maintained’ — native format — or ‘in a reasonably useful form or forms.'” The Judge believed that sections (E)(i) and (ii) are mutually exclusive and only the latter applies to ESI because ESI does not easily lend itself to production as maintained in the usual course of business because the “quintessential example of producing hard copy documents in the usual course of business involves handing over the keys to the filing room, then it is hard to see how an ESI production could ever provide a comparably true-to-life picture of the business’ hard copy document organization.”