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Gregory L Fordham
Under Rule 34 of the FRCP there are two options when producing requested documents. The documents can be tagged and organized to match the requester’s specific document demands or they can be produced as they are kept in the ordinary course of business.
Although similar language has been used to compel the production of native files with application metadata (See, 34(b)(2) (E)(ii)), the production option (See, 34(b)(2)(E)(i)) uses similar words to describe a different requirement.
Even though the requesting party can specify the format of the data to be produced, there is no provision allowing the requesting party to specify how the produced data should be organized. Rather, the organization of the data is solely the choice of the responding party.
In the recent case of Pass & Seymour Inc v Hubbell Inc, 2008 WL 4240490, N.D.N.Y. (Sept 12, 2008), the Court explained that the purpose for even having the provision is to prevent dumping of large document productions without indexing or having a readily apparent organization.
Generally, producers will prefer to produce their data as they are kept in the ordinary course of business. That way they can avoid the extra costs of tagging and organizing the data to match the specific document demands.
Interestingly, satisfying the burden of producing data as they are kept in the ordinary course of business requires more than a mere representation of fact.
In fact, the Court concluded that some minimum informational data is still required. Some examples listed by the Court include:
Although the case makes clear that a filing system description is required, it offers no specific guidance as to what might be acceptable.
In its decision the Court reviewed various cases pointing out the differing standards that had been considered. In some, a breakout by category was acceptable. In others, a scheme devised to facilitate navigation through the production was not adequate.
Perhaps if there was some guidance that one could take from reading the decision in Pass & Seymour it would be that the description should facilitate correlation of the produced documents to the production requests.
In other disciplines this has often been termed the “usable form” requirement. For example, in the manufacturing arena a bill of materials can correlate the significance of purchase orders to a particular completed end item.
In that scenario, production of the bill of materials becomes essential in order to avoid a claim of data dumping and to satisfy one’s production obligations under certain Federal procurement statutes.
Clearly, producing parties may need to consider the manufacturing model when developing their filing system description.
What will be interesting is whether or not the filing system description will become just another standard feature of an entity’s litigation playbook along with preservation letters, litigation hold procedures, discovery protocols and confidentiality agreements. Or, will it become something that is unique to the litigation?
With advent of electronic data and searchable document formats, one might wonder whether technology could satisfy the filing system requirement. Unfortunately, though, a searchable data format has little effect on the minimum information requirements.
In its decision, the Court specifically considered whether a searchable format negated a party’s indexing obligations. It concluded that even if produced in a searchable format the producing party still is required to provide certain basic information.
If there is any role for technology in solving this added disclosure requirement, it might be that document database designers consider this obligation when developing their document index designs.
Otherwise, a production without adequate planning could contain everything requested yet still not be quite enough.