Avoid getting an “Undifferentiated Pile” production
You served 10 Requests for Production on the opposing party under Fed. R. Civ. P. 34.
Thirty days later, they provided a response full of general boilerplate objections. Then, nothing but crickets.
Finally, after months of harassment, they have given you a single, 500-plus-page PDF file, with Bates-stamped pages.
You're going through it, and both you and your computer are losing the will to live.
Half of the pages look non-responsive. You cannot tell what is an attachment and what is a separate document. You cannot determine who at the defendant company had possession of any given document, or when it was created or modified. You can't see the email addresses or BCC recipients on the emails. You can’t tell if there are any comments in Word documents or Excel files.
And perhaps most important, you cannot tell which documents—if ANY—are responsive to each of your lovingly crafted and carefully thought-out requests.
Sound familiar? Productions like this are the norm in smaller cases and certain practices. But such low-tech production of ESI (electronically-stored information) in discovery almost certainly violates Fed. R. Civ. P. 34.
It should be fun to find the key documents in here.
Federal Rule of Civil Procedure 34(b)(2)(E) requires that (unless a court order or stipulation between the parties provides otherwise):
A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.
The producing party may elect whether to produce the documents as they are kept in the usual course of business--almost always the simpler option—or to label and organize them. But if “a party elects to produce documents as they are kept in the usual course of business, that party bears the burden of showing that the natural organization of the documents makes finding critical documents reasonably possible. … For example, a party may meet this burden by showing that it produced emails as they are kept in the ordinary course of business by making family-complete productions that are either organized chronologically by custodian or by producing metadata that allows automated sorting. … Non-email electronically stored information (“ESI”) may be produced with metadata showing the custodian and location of storage.” See Echavarria v. Roach, et al., Civil Action No. 16-11118-ADB, 2018 WL 6788525, at *1 (Dec. 26, 2018), citing Enargy Power (Shenzen) Co v. Wang, No. CIV. A. 13-11348-DJC, 2014 WL 4687542 at *3 (D. Mass. Sept. 17, 2014) and Valeo Elec. Sys. Inc. v. Cleveland Die & Mfg. Co., No 08-cv-12486, 2009 WL 1803216 at *2 (E.D. Mich. June 17, 2009).
In Echavarria, a case claiming that the Lynn police fabricated evidence against a murder suspect, Judge Allison Burroughs considered objections from Lynn that the plaintiff had not provided materials responsive to its request for “presentment letters,” which must be timely delivered to a government defendant, and “proof of service or delivery.” In other words, it mattered who saw these documents, and when.
“The cover email for the production, however, offered no indication of what the production contained, and the files do not appear to have been produced with metadata or any other information regarding where or from whom they were collected.” The Plaintiff had the option to produce "accompanying metadata or other information that shows the organizational structure in which the documents were stored, including from whom the documents were collected"—or he could simply "state which request(s) the documents are responsive to." Echavarria, 2018 WL 6788525, at *2.
In that situation, the answer was likely easy: Letting the city know which documents were the requested "presentment letters" was certainly easier than providing metadata. But in many cases, “requiring materials to be segregated according to the requests … would impose a difficult and usually unnecessary additional burden on the producing party.” Del Socorro Quintero Perez v. United States, No. 13CV1417-WQH-BGS, 2016 WL 304877, at *5 (S.D. Cal. Jan. 25, 2016) (cleaned up). The alternative is not to permit parties to produce ESI in “a single, undifferentiated pile” (or PDF). Id.
Instead, a party “produces emails in the usual course when it arranges the responsive emails by custodian, in chronological order and with attachments, if any. … For non-email ESI, a party must produce the files by custodian and by the file's location on the hard drive-directory, subdirectory, and file name.” Valeo Elec. Sys., 2009 WL 1803216, at *2.
You can avoid an “undifferentiated pile” production by specifying the format of production in your requests and/or by agreeing on a format during a Rule 26(f) conference. Not every case needs metadata details to nail down the who, what, where, and when. But when it matters, it's best to talk to a consultant or eDiscovery vendor to include the right information in your request before it’s even sent.
