Nat’l Jewish Health v. WebMD Health Servs. Grp., Inc., 2014 U.S. Dist. LEXIS 69669 (D. Colo. Mar. 24, 2014) (Hedges, Special Master):

The WebMD ESI Production Complies With Rule 34(b)(2)(E)(ii)

1. Rule 34(b)(2)(E) provides that unless otherwise stipulated or ordered by the court, the following procedures apply to producing documents or ESI:

(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.

Fed. R. Civ. P. 34(b)(2)(E) (emphasis added).

   2. The Advisory Committee Note to the 2006 amendment to Rule 34(b) clarifies the rule:

   The rule does not require a party to produce electronically stored information in the form it [sic] which it is ordinarily maintained, as long as it is produced in a reasonably usable form. But the option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation. If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.

Advisory Committee Note to 2006 amendment to Fed. R. Civ. P. 34(b) (emphasis added). Thus, when ESI is kept in an electronically-searchable form, it "should not be produced in a form that removes or significantly degrades this feature."  [*13] Aguilar v. Immigration & Customs Enforcement Div., 255 F.R.D. 350, 355 (S.D.N.Y. 2008) (citing Advisory Committee Note to 2006 amendment to Fed. R. Civ. P. 34(b)).

3. Under Rule 34, a distinction between documents and ESI is made in terms of the form of production. United States v. O'Keefe, 537 F. Supp. 2d 14, 23 (D.D.C. 2008). A party is obligated to produce documents either as these are kept in the usual course of business or the party "must organize and label them to correspond to the categories in the request." Id. (citing Fed. R. Civ. P. 34(b)(2)(E)(i)). On the other hand, if the request does not specify a form of production, the responding party must produce ESI in the form in which it is ordinarily maintained or in a reasonably usable form or forms. Id. (citing Fed. R. Civ. P. 34(b)(2)(E)(ii)). Additionally, a party "need not produce the same electronically stored information in more than one form." Id. (citing Fed. R. Civ. P. 34 (b)(2)(E)(iii)).

4. The distinction in Rule 34(b)(2)(E) between the production of documents versus the production of ESI has been explained as follows:

   The distinction between the procedures in subparagraph (E)(i) and (E)(ii) is made plain in the language of the two pertinent provisions. By its terms, subparagraph (E)(i) applies only to "documents," while subparagraph (E)(ii) applies to ESI. Though lawyers and judges have long interpreted "documents" to include ESI, Rule 34(a)(1)(A) and the accompanying Committee Note make clear that ESI is separate from and distinguishable from documents. The rule deliberately refers separately to "designated documents" and "electronically stored information" to highlight the differences between them (Rule 34(a)(1)(A)). Therefore, ESI is not a subset of documents; it is a new category in addition to documents. See Report of Advisory Committee on Civil Rules to Committee on Rules of Practice and Procedure, July 25, 2005, found in House Document 109-105, at 157-158 (2006) (The Committee decided to recommend making 'electronically stored information' separate from 'documents.') The distinction was drawn primarily to recognize the difficulty in fitting different forms of ESI, like dynamic databases that constantly change, within the traditional concept of document. See Committee Note to Rule 34(a) (2006).

J.K. Rabiej, 2008 Emerging Issues 2628, Rabiej on Production of ESI, July 29, 2008.²

2   John K. Rabiej  [*15] is the former Chief of the Rules Committee Support Office of the Administrative Office of the United States Courts and the former Executive Director and Director of Judicial Outreach for the Sedona Conference.

5. Although several decisions have held that the production of ESI must comply with the traditional production requirements governing the production of paper documents in addition to complying with the specific ESI production requirements--i.e., that ESI must be produced as kept in the usual course of business or must be organized and labeled to correspond to the categories in the production request--these decisions "impose an unwarranted burden not intended under the Rule 34(b)(2)(E)(ii) amendments, which expressly require that ESI be produced only in the form it is regularly maintained or in a reasonably usable form." 17-15 Bender's Forms of Discovery Treatise § 15.125.

6. Here, in its Requests for Production, NJH requested that WebMD produce ESI in native format or, if such production was prohibited by law or required special software not freely available, in TIFF or PDF formats. ***

7. Notwithstanding the general description contained in NJH's requests, NJH also specifically requested that WebMD produce emails in MSG format, which is a near-native format. (See Findings of Fact, supra ("FoF") ¶ 14). WebMD complied with that request and produced email in MSG format. (FoF ¶ 14). All email attachments were extracted and produced in native format, consistent with the parties' conferral. (FoF ¶¶ 11, 14). The standalone nonemail documents were produced in native format. (FoF ¶ 14).

8. Even if NJH had not requested the production of emails in MSG format, WebMD's production of emails in MSG format would be proper. Rule 34(b)(2)(E)(ii) trumps specific instructions in discovery requests such that "even if native files are requested, it is sufficient to produce memoranda, emails, and electronic records in PDF or TIFF format accompanied by a load file containing searchable text and selected metadata . . . because the production is in usable form, e.g., electronically searchable and paired with essential metadata." Aguilar, 255 F.R.D. at 356-57 (citing Sedona Principles). "Email is not typically produced in native file format because the extraction of individual emails from a large database containing other emails requires conversion of the file format into a near-native format." 1-37A Moore's Federal Practice - Civil § 37A.43.

9. WebMD maintains its ESI in an electronically searchable form. (FoF ¶¶ 1, 3, 7). WebMD responded to NJH's Requests for Production by producing its ESI in an electronically searchable form. (FoF ¶ 13). All of the WebMD ESI Production is searchable, sortable, paired with relevant metadata, and includes Concordance load files, as requested by NJH. (FoF ¶¶ 11, 13, 15, 18). Therefore, WebMD produced its ESI as NJH requested it and in the form in which it is ordinarily maintained. (FoF ¶¶ 1, 7).

10. The WebMD ESI Production also was produced in a reasonably usable form. WebMD did nothing to compromise or "significantly degrade" the ability of NJH to fully search or sort the WebMD ESI Production. (FoF ¶¶ 13, 16, 18).

11. NJH offered no evidence of an inability to search or sort the WebMD ESI Production and, in fact, offered no evidence that NJH ever attempted to search or sort the WebMD ESI Production.

12. Accordingly, WebMD produced its ESI in compliance with Rule 34(b)(2)(E)(ii).