Anyone who has been through the discovery phase of litigation knows that it can be burdensome, contentious and exhausting for all involved. Discovery can tie up your employees’ time, require the involvement of multiple IT personnel and generate significant legal fees tied to your efforts to either block or obtain information from your opponent.
One reason discovery takes on a life of its own is the breadth of matters into which the Federal Rules of Civil Procedure (and their nearly verbatim state law analogs) permit inquiry. Under Federal Rule 26(b)(1), parties seeking information from their litigation opponents are not limited to information which is directly on point to the litigation. Instead, if the information is merely “reasonably calculated to lead to the discovery of admissible evidence,” then it is fair game for discovery purposes. Likewise, Rule 34, which governs the production of documents and electronic information, is very broad in its scope. This rule permits discovery of documents and electronically stored information “stored in any medium,” including “writings, drawings, graphs, charts, photographs, sound recordings, images and other data or data compilations. Taken together, Rules 26 and 34 can force a litigant to provide mountains of documents, electronic files and the like.
However, there are limits to what has to be produced. One such limit is particularly relevant in the age of electronically stored information: A party cannot be required to create a brand new document in response to a request under Rule 34. For example, in Flying J Inc. v. Pilot Travel Centers, LLC, 2009 WL 1835000, at *2 (D. Utah June 25, 2009), the plaintiffs served a request for production asking for a detailed and subdivided summary of various transactions stored in the defendants’ database. The defendants responded that no such summary existed and therefore refused to produce one. Id. The court endorsed their refusal and said that a request for electronically stored information cannot require a responding party to “slice, dice and summarize the data” for the requesting party’s benefit. Id.; see also Columbia Pictures Indus. v. Bunnell, 2007 WL 2080419, at *6 (C.D. Cal. May 29, 2007) (Holding that a party is required to produce or permit inspection already existing data, but has no duty to create new data or a new document.)
This same rule also applies when electronically stored information is not the target of the discovery. For example, in Alexander v. F.B.I., 194 F.R.D. 305, 310 (D.D.C. 2000), the plaintiffs (who filed suit in response to the Clinton era “Filegate” incident) requested production of a list of people whose FBI reports had been requested by the White House. When the defendants responded that no such list existed, the plaintiffs asked the court to order them to produce a list. The court did not grant the plaintiffs’ request and said, “Rule 34 only requires a party to produce documents that are already in existence… A party is not required to prepare or cause to be prepared new documents.” Id. In another case decided in 2010 in federal district court in Colorado, the court stated that, “It is well-settled that a responding party’s obligations under Rule 34 do not extend to non-existent materials.”
Although there is no obligation to newly create some type of summary or chart for existing data or information, nothing prohibits a party from doing so, though the newly created document could only supplement, not replace, the requested information. The court in Flying J made note of this: “The rule probably does not prohibit a responding party from creating or providing summaries if they are truly responsive to the request. This might be preferable for the producing party and acceptable to the requesting party.” As a practical point, particularly in a case with voluminous documents and data at issue, providing your opponent with a summary of your own making gives you a tactical advantage: you can highlight the good data and contextualize the bad.
In summary, the fact that Rule 34 does not require a party to create new documents is a shield: You do not need to do the other side’s work by creating summaries of voluminous data for them. This will save you time and money. On the other hand, the fact that Rule 34 does not forbid creation of new documents can be used as a sword: By summarizing the data for your opponent, you have the opportunity shape the data to your advantage.