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Anderson Living Trust v. WPX Energy Prod., LLC, —F.R.D.—, 2014 WL 930869 (D.N.M. Mar. 6, 2014)

During discovery in this case, the parties came to an agreement that in response to the discovery request, Defendants would scan hard copy documents and produce the material electronically in searchable portable document format (PDF).  The Plaintiff then sought to have the Defendants label, correlate or organize the production further to aid the Plaintiff’s use of the materials. Despite the arguments of Plaintiff, the Court found “the rule 34(b) (2) (E) (i) requirement that documents be produced either in the usual course of business or labeled to correspond to categories in the request does not apply to ESI.”

During discovery, the parties agreed to a production format which required the Defendants to scan the hard copy documents in the order they were maintained within each file and to convert the documents to fully searchable PDFs.  The Defendants complied with the agreement and produced in the requested electronic format and as maintained in the ordinary course of business.   The Defendants also voluntarily provided Plaintiffs an index of its document production.  Despite Defendants’ compliance, Plaintiffs sought to compel Defendants to arrange and label their production, which included approximately 20,000 pages of documents that had been scanned and converted.  Defendants argued that they “had done everything required of them under the Federal Rules of Civil Procedure…”  Initially, the Court was inclined to agree with Plaintiffs’ position and concluded that it would require Defendants to “indicate by Bates numbers the documents responsive to each request.”  Upon Defendants’ Motion to Reconsider, however, the Court concluded that no further production was appropriate:

The Court initially stated that it understood rule 34(b) (2) E(i)—requiring a responding 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”—to apply to both hard copy documents and ESI., as both are subsets of the catchall phrase “documents” and that rule 34 (b) (2) (E) (ii) and (iii) are additional provisions related only to the production of ESI.

After reviewing the evolution of the Law regarding Rule 34(B) (2) (E), the Court’s analysis found that the term “documents” in rule 34(b) (2) (E) (i) does not include ESI.  Further the Court found that because rule 34(b)(2)(E) also allows parties to stipulate out of the default rules for production, the parties’ mutual agreement to scan the hard copy documents  and produce in electronic form resulted in the production being governed by the rules applicable to ESI for which the Defendants had met their obligations.

The Court found that the parties are entitled to the guarantees of (E) (i) or (E) (ii) but not both, stating that the Plaintiff’s secured production in in their preferred form of ESI, thus availing themselves of the guarantees of (E ) (ii)., and then sought to have the production organized for them as well.  The Court stated that the drafters of 34 (b) (2) (E) (ii) contemplated that parties requesting ESI would be able to organize it themselves, in their own way and at their own expense.

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