Commercial Litigation and Arbitration

Rule 34 — Form of Document Production

Fed.R.Civ.P. 34(b)(i) provides that ‛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.“ This presents an alternative — either produce them as kept in the usual course of businessor shall organize and label them to correspond with the categories in the request. What does it mean to produce documents as ‛kept in the usual course of business?“ Does the extent of organization of the documents in ordinary course matter? What if the documents are warehoused or archived? State of Oklahoma v. Tyson Foods, Inc. , 2007 U.S. Dist. LEXIS 36308 (N.D. Okla. May 17, 2001) (Magistrate Judge Sam Joyner), collecting various authorities, provides the following guidance:

(1) Disorganized Filing System in Ordinary Course. ‛It appears that the pivotal consideration in deciding discovery challenges under rule 34(b)..., where a large number of documents have been produced based on an ‘as they are kept in the usual course of business’ election is whether the filing system for the produced documents ‘is so disorganized that it is unreasonable for the party to whom the documents have been produced to make its own review’“ (quoting Renda Marine, Inc. v. United States,58 Fed. Cl. 57, 64 (2003) (internal brackets omitted)).

(2) Direct or Index. The producing party must ‛either direct the responding party to the location or locations within its files where documents responsive to each of their specific requests may be found, or provide a key or index to assist the responding party in locating the responsive documents“ (quoting U.S. Commodities Future Trading Comm’n v. Am. Derivatives Co., 2007 WL 1020838 (N.D. Ga. 2007)).

(3) Mandatory Labeling if Disorganized Filing System Capitalized On. If the Court ‛were to conclude that the filing system utilized by the producing party was so disorganized as to prevent the requesting party from making a meaningful review of the requested documents, it would not hesitate to order that documents be organized and specifically labeled as responsive to particular requests“ (citation omitted).

(4) Organize and Label If Non-Responsive Documents Produced. ‛[I]f the producing party were to be overly generous' in identifying responsive documents so as to unduly burden the requesting party in their search of those documents, the Court would similarly require that documents be organized and specifically labeled as responsive to particular requests“ (citations, internal brackets and quotations omitted).

(5) Warehoused Documents. The court noted a conflict as to whether offering warehoused documents constitutes production in the usual course of business. Am. Int'l Specialty Lines Ins. Co. v. NWI-I, Inc., 240 F.R.D. 401, 410-411 (N.D. Ill. 2007) (no); In re Adelphia Communications Corp., 338 F.R. 546, 551-52 (Bankr. S.D.N.Y. 2005) (yes). It then added its perspective, rendering this distinction irrelevant: ‛The distinction is not whether the document are achieved or used daily. The distinction is whether they are properly indexed and labeled.“

(6) Boxing Documents. ‛The documents in this case have been removed from their normal files and placed in boxes for review. One court has noted the improbability that parties in the ordinary course of business ‘routinely haphazardly stores documents in a cardboard box.’ T.N. Taube Corp. v. Marine Midland Mortgage Co., 136 F.R.D. 449, 456 (W.D.N.C. 1991). This Court finds that removal to cardboard boxes does not destroy the ‘ordinary business’ distinction but it does add the precaution that only responsive documents be placed in the boxes. Inclusion of nonresponsive documents clearly violates the letter and spirit of the rule.“

On this last point, it cannot be that the magistrate judge would have found the production satisfied if filing cabinets identical to the originals, that would have changed the result.

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