Pass & Seymour, Inc.v. Hubbell Inc., Case No. 07-945 (N.D. N.Y. Sept. 12, 2008)

This case addresses a ubiquitous problem in litigation today, which should be addressed at the Rule 26(f) conference at the beginning of the case and optimally put into the Rule 16(b) Case Management Order. Here it was not.

Defendant was sued for infringement of fifteen patents. In response, it served seventy-two document requests on plaintiff. Plaintiff produced ESI equal to 405,000 pages of documents on a hard drive in 202 unlabelled files with no corresponding index. Dialogue with plaintiff’s counsel was unavailing and a motion followed.

The issue, of course, revolved around Rule 34(b)(2), which requires that documents be produced “as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.” Magistrate Judge David E. Peebles pointed out that this second option was added in 1980 to prevent parties from “deliberately … mix[ing] critical documents with others in the hope of obscuring significance.” Slip Opinion at 6 (quoting Advisory Committee Note for 1980 Amendment to Rule 34 (quoting report of the Special Committee for the Study of Discovery Abuse, Section of Litigation of the American Bar Association) (1977))). The court also made it clear that if the party elects to produce documents as they are kept in the ordinary course of business, that party bears the burden of demonstrating that the “documents were in fact produced consistent with that mandate, which requires more than a mere assertion to the court. Slip Opinion at 7.

The court clearly felt that plaintiff had failed to carry this burden:

In support of this assertion, P&S has offered only an attorney’s statement to the effect that the documents produced have been assembled as they have been maintained in the usual course of the company’s business, without further elaboration. Before Hubbell’s motion was filed, P&S had provided literally no additional information regarding its search for the documents, including where the documents produced were maintained, whether they came from a single source or file or from multiple points of origin, the identity of the record custodians, and the manner in which they were organized.

Slip Opinion at 8 (emphasis added). The court cited the opinions in Cardenas v. Dorel Juvenile Group, Inc., 230 F.R.D. 611, 618 (D. Kan. 2005) and Johnson v. Kraft Foods North America, Inc., 236 F.R.D. 535, 540-41 (D. Kan. 2006), for the proposition that the underscored information is required to carry that burden. In the words of the court, “the rule contemplates that a party selecting this option disclose information to the requesting party regarding how the documents are organized in the party’s ordinary course of business.” Slip Opinion at 11. The court cited to the O’Keefe case, discussed here, and opined:

If P&S could sustain its burden of showing that in fact the documents produced are maintained in that same fashion – that is, contained within the same 220 unlabelled folders – either digitally or in hard copy, then it clearly would have met the requirement of production of the documents as they are ordinarily maintained in the course of its business. The court doubts, however, that this is the case, and P&S has not argued otherwise. P&S has therefore failed to fulfill its obligation to produce the documents as they are maintained in the ordinary course of its business.

Slip Opinion at 12. The court went on to note that absent an opportunity to inspect the original documents where they are maintained and in the manner in which they are organized, the documents “must be organized in such a way that the system utilized by the producing party is replicated; in other words, the documents should be produced, organized and labeled and, if appropriate, indexed just as they are maintained by the producing party.” Slip Opinion at 13.

The court set forth the minimum requirement for information about documents produced as they are kept in the ordinary course of business as follows:

[T]he disclosing party should provide information about each document which ideally would include, in some fashion, the identity of the custodian or person from whom the documents were obtained, an indication of whether they are retained in hard copy or digital format, assurance that the documents have been produced in the order in which they are maintained, and a general description of the filing system from which they were recovered.

Slip Opinion at 18.

The court concluded that it would be unfair to require plaintiff to organize the documents to respond to the seventy-two requests, and arguably less information may be required to describe ESI than hard copies. Nonetheless, the court ordered plaintiff to produce an index of the documents produced, “revealing the custodian, location and a general description of the filing system under which each document was maintained in the ordinary course of plaintiff’s business, further including an indication of whether the document is kept in digital format, hard copy, or both.”

Read the Opinion