decisis, considering the Court cited three prior opinions in which it had reached a similar result
ordering a party to tie Bates numbers to specific Requests.
The Court reflected on its reasoning as enunciated from the bench:
The Court said that it understood rule 34(b)(2)(E)(i)
requiring a responding party to produce
documents ³as they are kept in the usual course of business or .
. . organize and label them to
correspond to the categories in the request´ —
to apply both to hard copy documents and to
ESI, as both are subsets of the catchall term ³documents,´ and that rule 34(b)(2)(E)(ii) and (iii)
are additional provisions related
only to the production of ESI. … The Court expressed
uncertainty regarding how a party would produce ESI ³in the usual course of business,´ and that,
if the party were to go through the documents and remove privileged or unresponsive
documents before placing the files on a storage device, this production would not meet the
³usual course of business´ requirement and the party would have to label the documents to
correspond to the categories in the request. … The Court compared hard copy document
storage to ESI and noted that it would be difficult to find an analog to allowing opposing counsel
access to boxes of information kept in warehouses, because it would require the responding
party to give the other party access to the responding party’s computer system
, or to place all of
the files on a storage device without culling out any unresponsive or privileged files….
The Court, it appears, was less than supremely confident in its ruling. Understandably, as these
were not your usual, imperious “Let them eat TIFF” Defendants.
They approached the Plaintiffs
and inquired about preferred forms of production. They supplied native files in native
forms and paired same to particular requests. They promised that the paper documents were
ordered as in the usual course, notwithstanding their digitized format. They graciously added
searchability to unsearchable paper documents and furnished an index.
I’ve seen worse…
A month later, the Court held a hearing on an unrelated matter and the defense asked the Court
to reconsider its directive to pair the Bates numbers of the electrified paper with the requests to
which they are responsive.
It’s not clear from the opinion why the work hadn’t been done in the
intervening month, and I expect Plaintiffs’ counsel couldn’t have passed a BB when the Court
said it “was seriously rethinking its prior ruling” and that “some of the commentators and some of
the cases conflate.”
I hope it wasn’t some blindsided young associate who had to comment and conflate all that back
to the partners. [Have you seen Breaking Bad?
They don’t mess around in Albuquerque].
The Court made it easy for the defense, stating that, if the Defendants could prove that the ESI
was produced as it was kept in the usual course of business, without litigation-related alteration,
then the Court was inclined to rule that no labeling would be required. But the Court added,
“once you’ve set there and you had your paralegals go through it, you’ve decided that this is
relevant, this is not relevant, we’re going to go through it for privilege, we’re going to Bates
stamp it, I don’t think that’s . . . the usual course of business.”
Undaunted, the defense provided a declaration, and a damn fine one, too! The Declaration
establishes that the only documents removed from production were privileged ones, and
supplies a breakdown of contents by Bates number ranges and sources. The affidavit also
confirms my suspicion that the venerable Plaintiffs’
firm was trying to navigate e-discovery in an
“old school” way, without benefit of basic e
The Plaintiffs supplied no counter-declaration from anyone with any e-discovery expertise (or
from anyone at all, insofar as PACER reveals).
Reminder: Evidence is good. Judges like evidence more than lawyer talk.
At this juncture, the Court could have put this matter to bed in three ways, without muss, fuss or
1. The Court could have found that the material in question derived from hard-copy
documents clearly subject to 34(b)(2)(E)(i) at the start of litigation, and the conversion of
these paper documents to searchable electronic forms for use by counsel in discovery
didn’t change their essential character for purposes of requiring that they be or
they are kept in the usual course of business or organized and labeled to correspond to
the categories of a request. Plaintiff prevails.
2. The Court could have found that the electronic counterparts of the paper documents had
been produced in substantially the way they were kept in the usual course of business,
making reasonable allowances for variations attendant to the parties’ agreement to scan
and OCR the material and the need to protect privileged content. Documents withheld as
privileged would necessarily be identified in a privilege log by Bates number, so, their
location within the collection could be readily established. Defendant prevails.
3. The Court could have found (and did find) that the Parties agreement respecting
production was a stipulation that altogether removed the issue from the purview of Rule
34(b)(2)(E), and the Court could have fashioned any outcome it deemed proper and
proportionate without further need to address the (inapplicable) Rule 34(b)(20(E) in dicta.
Instead, the Court pursued a broad-ranging assessment of Rule 34(b)(2)(E) that stirs an eddy of
For example, the Court termed “unavailing” the argument that the source documents
weren’t ESI because they existed in hard copy form and were only imaged for
production. The Court reasoned that the agreement to image the documents was, in fact,
the parties stipulating out of the rule’s default provisions.
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This makes little sense. Certainly, parties can agree to stipulate around Rule 34(b)(2)(E); but
such a stipulation should be clear and express.
It needn’t follow that because one party accedes
to another party’s desire to make paper records more convenient, organization of the information
is optional. Why should a mutually beneficial endeavor come at the risk that an opponent is free
to destroy the usual and customary organization of the evidence or at the cost of a requesting
party’s right to know what’s responsive to what?
The parties merely settled upon forms of production. They made no bargain respecting
the organization of production, nor did they agree to restrict the scope of production. These are
three distinct dimensions of discoverable information.
It was the producing party’s avowed intention to convert the hard
-copy documents to TIFF
images. Had they done so without the agreement of the requesting party, they would
nonetheless have been obliged to produce the hard-copy documents as kept in the usual course
or organized and labeled to correspond to the request. Judge Browning made quite clear that,
“’if at the beginning of the litigation the documents existed in document hard copy form,’ then the
Defendant could not unilaterally convert the documents into ESI.”
However, if the requesting
party cooperates and allows a producing party to convert hard-copy documents to TIFF or PDF,
the requesting party is now agreeing, sub silentio, to forego organization of the documents. The
producing party is thus free to make an unholy mess of the production from an organizational
standpoint, and there’s not
a thing the requesting party can do about it.
That doesn’t add up.
2. At the start of the litigation, the 20,000 pages produced were paper records kept in the
usual course of the Defendants’ business.
From the standpoint of the usual course of the
s’ business, they never changed form.
That is, they did not become ESI in
conjunction with the customary operation or recordkeeping of the Defendants’
business. So, they remained subject to the provisions of Rule 34(b)(2)(E)(i).
mistake to equate conversion for the convenience of the lawyers to conversion in the
usual course of the litigants’ business.
If a lawyer elects to convert ESI to another form like scanned images, the destination form may
be the form used in the course of the lawyer’s business, but it’s not the form used by the
The Court fails to distinguish between the form and organization of information as used by the
parties to an action and the (de)form and (dis)organization occasioned by counsel’s wish to
convert information to something else. We frequently encounter this assumption in e-
That is, producing parties assume that requesting parties can’t demand any form
more complete or utile than the dumbed-
down versions used by producing party’s counsel.
That’s not the rule.
Requesting parties should be entitled to obtain forms of production that mirror the forms the
producing parties use, not compelled to accept the degraded forms preferred by the producing
3. The form of production does not implicate the organization of production. They are
different, and each presents different opportunities for abuse. A party can produce
information items in utile, complete and searchable forms but still disrupt organization or
logical unitization (i.e., folder structure) so as to render the production all but
useless. The notion that electronic search adequately offsets the risk of shuffling and
other organizational mischief is untenable
—ask anyone who’s ever gotten a malformed
Organizational information, like foldering data and file locations (paths), are as essential to utile
production today as they were in the paper era, if not more so.
I don’t share the Court’s view that potentially responsive documents/ESI collected as
maintained in the usual course of business lose that character when privileged
documents are culled. Granted, the collection is not as complete as kept in the usual
course, but the remaining documents are still organized and in the same form as kept in
the usual course. In the paper era, it was customary for the boxes from the legal
department to be spirited out of the warehouse; and when privileged contents turned up,
they, too, were pulled.
Production by inspection didn’t oblige a producing party to
abandon privilege. Parties need not do so with respect to ESI.
Most problematic of all is the Court’s conclusion that provisions 34(b)(2)(E)(i) and
34(b)(2)(E)(ii) “apply to distinct, mutually exclusive categories of discoverable
information,” being “Documents,” which the Court calls “a term that does not include ESI,”
governed exclusively by 34(b)(2)(E)(i), and ESI, which the Court says is governed
exclusively by 34(c)(E)(ii). The Court relies on the views of a distinguished commentator,
John K. Rabiej. With respect to Professor Rabiej
who was closely involved with the
his disjunctive interpretation of 34(b)(2)(E) is one thoughtful view;
but one that seems oddly out of step with the Committee Notes.
The Court’s embrace of such a distinction is regrettable b
ecause the 2006 Federal Rules
amendments and the Committee Notes that accompany them go to some pains to underscore
that the term “documents” includes ESI.
In fact, defining “Documents” to encompass data
compilations has a long and uncontentious history in the Rules.
The Court saw the perils, stating, “There is something to be gained from imposing basic
organization requirements onto massive productions of ESI; artifacts of ESI can be jumbled
by dumping them out of their file directories and onto the requesting party
just as easily as hard copy documents can.”
Indeed, and it happens all the time , though more
often as a consequence of carelessness than of bad faith.
The organization of ESI in production can fairly and efficiently be made to mirror its organization
in the usual course of business. It typically requires little more than competent handling of
It doesn’t require granting an opponent access to a responding party’s
Here again, it’s useful
to distinguish the three dimensions of discoverable ESI: form,
organization and scope. If a party culls privileged content before producing the data for
inspection, form and organization remain the same; only scope changes
—and it’s appropriate
that privileged content be outside the general scope of discovery. Any minimal impact on
organization is offset by the obligation to log content withheld as privileged.
Finally, it’s an ill wind which blows no man to good.
Judge Browning clarified that his
ruling did not apply unless the requesting party sought conversion to an imaged
“’[I]f at the beginning of the litigation the documents existed in document hard
copy form,’ then the Defendant could not unilaterally convert the documents into ESI.”
By that reasoning, if at the beginning of the litigation the documents existed as ESI, the
producing party cannot unilaterally convert the documents into paper or paper-like forms (e.g.,
images) unless the requesting party stipulates to same.
Quoting Professor Ra
biej, the Court notes that “while (E)(i) document production gives the
producing party the right to choose whether to produce ‘in the usual course of business” or
“label[ed] … to correspond to the categories in the request,’ (E)(ii) puts the ball in the re
party’s court by first giving them the option to ‘specify a form for producing’ ESI. Fed. R. Civ. P.
34(b)(2)(E)(i)-(ii). 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’ —
or ‘in a reasonably useful form or forms.’ Fed. R. Civ. P. 34(b)(2)(E)(i)
That’s powerful stuff, and dead right.
Producing parties have long assumed that they were free
to ignore a
requesting party’s specification of form so long as they produced in a form claimed to
be “reasonably usable.”
As the Court notes, the “reasonably usable” option applies only
when a requesting party fails to specify a form.
The lesson for requesting parties is always, always, ALWAYS specify forms for production in
your requests. If you want Word documents produced natively, SAY SO! If you want e-mail in
functional forms, specify the forms! The Rules afford requesting parties the crucial right to
specify form or forms of production, and lawyers who fail to avail themselves of that right are
inviting production of less utile and -complete forms.
If you wear a “KICK ME” sign on your
bootie, don’t be surprised by the boot.
So, with apologies to Judge Browning, the result seems right, but the rationale not so much.
dicta likely to be cited in support of mischief, and I know that’s not what the Court wished.
1. "Information items" as used here encompass individual documents and records
(including associated metadata) whether on paper or film, as discrete "files"
stored electronically, optically or magnetically or as a record within a database,
archive or container file. The term should be read broadly to include e-mail,
messaging, word processed documents, digital presentations and spreadsheets.
2. Responsive electronically stored information (ESI) shall be produced in its native
form; that is, in the form in which the information was customarily created, used
and stored by the native application employed by the producing party in the
ordinary course of business.
3. If it is infeasible to produce an item of responsive ESI in its native form, it may be
produced in an agreed-upon near-native form; that is, in a form in which the item
can be imported into the native application without a material loss of content,
structure or functionality as compared to the native form. Static image production
formats serve as near-native alternatives only for information items that are
natively static images (i.e ., photographs and scans of hard-copy documents).
4. The table below supplies examples of agreed-upon native or near-native forms in
which specific types of ESI should be produced:
Native or Near-Native Form or Forms Sought
Microsoft Word documents
Microsoft Excel Spreadsheets
Microsoft Access Databases
Adobe Acrobat Documents
Messages should be produced in a form or
forms that readily support import into standard
e-mail client programs; that is, the form of
production should adhere to the conventions
set out in RFC 5322 (the internet e-mail
standard). For Microsoft Exchange or
Outlook messaging, .PST format will suffice.
Single message production formats like .MSG
or .EML may be furnished, if source foldering
data is preserved and produced. For Lotus
Notes mail, furnish .NSF files or convert to
.PST. If your workflow requires that
attachments be extracted and produced
separately from transmitting messages,
attachments should be produced in their
Appendix 2: Exemplar Production Protocol
native forms with parent/child relationships to
the message and container(s) preserved and
produced in a delimited text file.
5. Absent a showing of need, a party shall produce responsive information reports
contained in databases through the use of standard reports; that is, reports that
can be generated in the ordinary course of business and without specialized
programming efforts beyond those necessary to generate standard reports. All
such reports shall be produced in a delimited electronic format preserving field
and record structures and names. The parties will meet and confer regarding
programmatic database productions as necessary.
6. Information items that are paper documents or that require redaction shall be
produced in static image formats scanned at 300 dpi e.g., single-page Group
IV.TIFF or multipage PDF images. If an information item contains color, the
producing party shall not produce the item in a form that does not display color.
The full content of each document will be extracted directly from the native
source where feasible or, where infeasible, by optical character recognition
(OCR) or other suitable method to a searchable text file produced with the
corresponding page image(s) or embedded within the image file. Redactions
shall be logged along with other information items withheld on claims of privilege.
7. Parties shall take reasonable steps to ensure that text extraction methods
produce usable, accurate and complete searchable text.
8. Individual information items requiring redaction shall (as feasible) be redacted
natively, produced in .PDF format and redacted using the Adobe Acrobat
redaction feature or redacted and produced in a format that does not serve to
downgrade the ability to electronically search the unredacted portions of the item.
Bates identifiers should be endorsed on the lower right corner of all images, but
not so as to obscure content.
9. Upon a showing of need, a producing party shall make a reasonable effort to
locate and produce the native counterpart(s) of any unredacted .PDF or .TIF
document produced. The parties agree to meet and confer regarding production
of any such documents. This provision shall not serve to require a producing
party to reveal redacted content.
10. Except as set out in this Protocol, a party need not produce identical information
items in more than one form and shall globally de-duplicate identical items across
sing each document’s unique MD5 hash value. The content,
metadata and utility of an information item shall all be considered in determining
whether information items are identical, and items reflecting different information
shall not be deemed identical.
11. Production should be made on CD, DVD or hard drive(s) using the medium
requiring the least number of deliverables. Label all media with the case number,
production date, Bates range and disk number (1 of X, if applicable). Organize
productions by custodian, unless otherwise instructed. All documents from an
individual custodian should be confined to a single load file. All productions
should be encrypted for transmission to the receiving party. The producing party
shall, contemporaneously with production, supply decryption credentials and
passwords to the receiving party for all items produced in an encrypted or
12. Each information item produced shall be identified by naming the item to
correspond to a Bates identifier according to the following protocol:
i. The first four (4) characters of the filename will reflect a unique alphanumeric
designation identifying the party making production;
ii. The next six (6) characters will be a designation reserved to the
discretionary use of the party making production for the purpose of, e.g.,
denoting the case or matter. This value shall be padded with leading zeroes
as needed to preserve its length;
iii. The next nine (9) characters will be a unique, consecutive numeric value
assigned to the item by the producing party. This value shall be padded with
leading zeroes as needed to preserve its length;
iv. The final six (6) characters are reserved to a sequence consistently
beginning with a dash (-) or underscore (_) followed by a five digit number
reflecting pagination of the item when printed to paper or converted to an
image format for use in proceedings or when attached as exhibits to pleadings.
v. By way of example, a Microsoft Word document produced by Acme in its
native format might be named: ACMESAMPLE000000123.docx. Were the
document printed out for use in deposition, page six of the printed item must
be embossed with the unique identifier ACMESAMPLE000000123_00006.
Bates identifiers should be endorsed on the lower right corner of all printed
pages, but not so as to obscure content.
vi. This format of the Bates identifier must remain consistent across all
productions. The number of digits in the numeric portion and characters in the
alphanumeric portion of the identifier should not change in subsequent
productions, nor should spaces, hyphens, or other separators be added or
deleted except as set out above.
Information items designated Confidential may, at the Producing Party’s option:
a. Be separately produced on electronic production media prominently labeled to
comply with the requirements of the [DATE] Protective Order entered in this
matter; or, alternatively,
b. Each such designated information item shall have appended to the file’s name
(immediately following its Bates identifier) the following protective legend:
When any item so designated is converted to a printed or imaged format for use
in any submission or proceeding, the printout or page image shall bear the
protective legend on each page in a clear and conspicuous manner, but not so
as to obscure content.
14. Producing party shall furnish a delimited load file supplying the metadata field
values listed below for each information item produced (to the extent the values
exist and as applicable):
First Bates identifier of item
Last Bates identifier of item
Bates identifier of the first page of the parent
document to the Bates identifier of the last page
of the last attachment “child” document
First Bates identifier of attachment range
Last Bates identifier of attachment range
First Bates identifier of parent document/e-mail
**This Parent_Bates field should be populated in
each record representing an attachment ³child´
First Bates identifier of “child” attachment(s); may
be more than one Bates number listed
depending on number of attachments.
**The Child_Bates field should be populated in
each record represent
ing a ³parent´ document. **
E-mail: mailbox where the email resided.
Native: Individual from whom the document
E-mail: \Deleted Items\Battles\
E-mail: Original location of e-mail including
original file name.
Native: Path where native file document was
stored including original file name.
Native: Author(s) of document
**semi-colons separate multiple entries **
Genl. A.L. de Santa Anna
**semi-colons separate multiple entries **
Carbon copy recipient(s)
**semi-colons separate multiple entries **
Blind carbon copy recipient(s)
**semi-colons separate multiple entries **
E-mail: Date the email was sent
E-mail: Time the message was sent
Remember the Alamo!
E-mail: Subject line of the message
E-mail: For e-mail in Microsoft
Outlook/Exchange, the “Unique Message ID”
field; For e-mail in Lotus Notes, the UNID field.
Native: Last Modified Date
Native: Last Modified Time
Native: file type
Denotes that item has been redacted as
containing privileged content (yes/no).
Size of native file document/email in KB.
Denotes presence of hidden Content/Embedded
Objects in item(s) (yes/no)
Denotes that item has been designated as
confidential pursuant to protective order (yes/no).
MD5 Hash value of the item.
Full path of other instances de-deduplicated by
**semi-colons separate multiple entries **
15. Each production should include a cross-reference load file that correlates the
various files, images, metadata field values and searchable text produced.
16. Parties shall respond to each request for production by listing the Bates
identifiers/ranges of responsive documents produced, and where an information
item responsive to these discovery requests has been withheld or redacted on a
claim that it is privileged, the producing party shall furnish a privilege log.
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