Producer’s index satisfies court that documents were produced as kept in the ordinary course of business

July 13, 2009 | Leave a Comment

Valeo Electrical Systems, Inc. v. Cleveland Die & Mfg. Co., 2009 U.S. Dist. LEXIS 51421 (E.D. Mich. Jun. 17, 2009)

In response to defendant requestor’s discovery requests, plaintiff producer produced over 270,000 pages of documents as of April 15, 2009. Producer produced the documents as kept in the ordinary course of business, as permitted by Rule 34(b)(2)(E). E-mails and other ESI was produced in the order in which they were found on the respective hard drives of each document custodian. Paper documents were scanned and produced in the order in which they were found in their folders, along with any identifying tabs. Scanned documents were produced in searchable PDF format, as agreed by the parties.

Producer also provided requestor with two indicies:

The first is a short three page table indicating the custodian for each Bates range of documents and identifying certain specific documents…. The second index…is a searchable spreadsheet index, that can also be sorted or modified into separate files, which describes the origin of all ESI: (i.) by Bates number range for each document; (ii.) the directory and, where applicable, a file name identifying where it was stored; (ii) the document name or title or “re:” line for emails containing such; and (iii) the estimated date the document was created or modified. The many attachments in this spreadsheet follow immediately the document or email to which they relate, and again the Bates numbers parallel those in the three page index so the source or [producer] employee from whose computer the documents were obtained can be identified for each grouping of documents.

Id. at *3. Although some concern was expressed at the June 5 hearing regarding the omission of metadata (although the parties had so agreed), consisting of file names and other identifying information, the second index (produced after that hearing) restored much of this metadata.

Requestor filed the instant motion to compel, alleging that “it must “manually open each and every electronic file on each of the [15] CDs produced”; that it must “ope[n] and revie[w] each of the thousands of individual electronic files”; and, most troubling, that [producer] named each of the files “innocuously” in an attempt to frustrate its review of the documents.” Id. at *4. Requestor demanded that producer organize the documents according to the 28 specific categories of the production request.

Under rule 34(b)(2)(E)(i), 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 choice is made by the producing party. Id. at *5. A party establishes that it has produced documents as kept in the ordinary course of business

by revealing information about where the documents were maintained, who maintained them, and whether the documents came from one single source or file or from multiple sources or files….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.

Id. at *6.

Here, producer had demonstrated that it had produced documents as kept in the ordinary course of business. The court observed that there was no indication that any document or file names had been modified during document production. The second index displayed the file names as they had existed in producer’s systems. “The documents Bates stamped in order by custodian, and in an estimated chronological order. If the employee kept a hard copy binder of responsive documents, that was also produced in ESI format.” Id. The court referred to the index as “the nearest thing approaching a ‘magic decoder ring’, and, although requestor “may consider it of no more help than the Rosetta Stone leaving him and his associates hours of work ahead to comb through what was previously undecipherable hieroglyphics on the 15 discs. Nonetheless, all ESI documents produced are searchable in Adobe and/or other commercially available litigation search programs.” Id. at *7. Producer’s efforts “satisfies [its] Rule 34 burden.” Id.

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