Tierno v. Rite Aid Corp., Case No. 05-02520 (N.D. Cal. July 31, 2008)

In this case, the differences between electronic production and hard copy production were starkly highlighted, as was the difference between “production” and “copying.” The case arose out of allegations that certain Rite Aid employees were misclassified as managers and therefore unlawfully denied break time, etc. The case raises the question why, where electronic documents are concerned, anyone would ever take hard copy, for which the receiving party may have to pay, as opposed to electronic files, which the responding party must supply free of charge.

A dispute arose over plaintiff’s request for “documents about class members' employment and salary history, terminations, performance evaluations, discipline, certain communications, and, most importantly, personnel files.” Rite Aid demanded that Plaintiff either travel to its various district office locations throughout California and copy the documents, or pay the copying expenses, which it estimated at $104,178.84. Plaintiff sought clarification from the Magistrate Judge of an earlier order requiring production by a date certain. Magistrate Judge Larson applied the seven-factor test of Zubulake v. UBS Warburg, L.L.C., 217 F.R.D. 309, 322 (S.D.N.Y. 2003), and held that Rite Aid should produce the documents at its own expense. Rite Aid appealed.

District Judge Thelton E. Henderson reversed. The bottom line in the court’s analysis was that the Zubulake cost-shifting analysis applies only to electronic documents, which apparently these were not. The rule for paper documents is that “[a] party producing documents will ordinarily not be put to the expense of making copies for the requesting party.” Slip Opinion at 8 (citing 7 Moore's Federal Practice § 34.13[5] at 34-92 (2008); Schwarzer et al, Federal Civil Procedure Before Trial § 11:1932.

The interesting thing about these cites is that they point to several opinions, which the court mentions in its opinion. The first such cite, Continental Ill. National Bank and Trust Co. of Chicago v. Caton, 136 F.R.D. 682, 690 (D.Kan. 1991), contains no mention whatsoever of who pays for copies. It discusses Rule 33 only. The second cite, Bills v. Kennecott Corp. 108 F.R.D. 459, 462 (D.Utah 1985), comes complete with a quote, “Ordinarily, the producing party bears the costs of reviewing and gathering documents while the requesting party pays for the costs of the copies only.” The quote, however, is nowhere to be found in the case, nor is the sentiment. It’s not until we reach the final case cited, Clever View Investments, Ltd. v. Oshatz, 233 F.R.D. 393, 394 (S.D.N.Y. 2006), that we actually find a decision that supports what apparently is universally accepted.

The Clever View court, in turn, simply stated “[A] party need only make requested documents available for inspection and copying; it need not pay copying costs.” The court cited Brassco, Inc. v. Klipo, 2004 U.S. Dist. LEXIS 11164, 2004 WL 1385816, at *5 (S.D.N.Y. June 21, 2004) and Dew v. 39th Street Realty, 2001 U.S. Dist. LEXIS 4631, 2001 WL 388053, at *1 (S.D.N.Y. Apr. 16, 2001). The Brasco court relied on Dew for its statement of the law. Dew just states that the pro se plaintiff is entitled to produce original documents for the defendants’ inspection, to be copied at their cost. The court cites to no precedent and includes no analysis. So that’s it; this proposition of law comes down to a statement about a pro se plaintiff who was concerned about the cost of producing documents. Ah, the evolution of the law.

Judge Henderson did cite to the Supreme Court decision in Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978), where the Court stated that Rule 34(a) states that “a party may serve on any other party a request ... [¶] (1) to produce and permit the requesting party ... to inspect, copy, test or sample ... [¶] (A) any designated documents ....” “[T]he presumption is that the responding party must bear the expense of complying with discovery requests, but [it] may invoke the district court's discretion under Rule 26(c) to grant orders protecting [it] from 'undue burden or expense' in doing so, including orders conditioning discovery on the requesting party's payment of the costs of discovery.” But, of course, the cost of production is not the same as the cost of copying. Thus we see – production is exactly that, to produce for inspection or copying. Thereafter, it’s up to the requesting party to decide whether it wants copies, and to pay for them if it does.

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