Rabiej on Production of ESI

Rabiej on Production of ESI


In MGP Ingredients, Inc. v. Mars, Inc., 2007 U.S. Dist. LEXIS 76853 (D. Kan. Oct. 15, 2007), both parties assumed that electronically stored information (ESI) must be produced as it is kept in the usual course of business or organized and labeled to correspond to the categories specified in the discovery request. John K. Rabiej, Chief of the Rules Committee Support Office, which staffs the Judicial Conference's Standing and Advisory Rules Committees, and author of several chapters in Moore's Federal Practice and Weinstein's Federal Evidence, discusses the facts of the case and explains why the procedures governing production of hard-copy documents do not apply to the production of ESI, which is governed by separate production procedures. He writes:
 
     [Fed R. Civ. P.] . . . 34(b)(2)(E) sets out the procedures that apply to the production of documents and electronically stored information (ESI), unless the parties stipulate or the court orders otherwise. Under subparagraph (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. Under subparagraph (E)(ii), a party must produce ESI in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms if the discovery request does not specify a form for producing it.
 
     In MGP Ingredients, Inc. v. Mars, Inc., 2007 U.S. Dist. LEXIS 76853 (D. Kan. Oct. 15, 2007), the parties assumed that the production of ESI was governed by the separate procedures in both subparagraphs (E)(i) and (E)(ii). The plaintiff further contended, over the defendant's objections, that ESI must be organized and labeled in accordance with one of the options in subparagraph (E)(i). In fact, subparagraph (E)(i) applies only to the production of hard-copy documents, while subparagraph (E)(ii) exclusively governs the production of ESI. The parties in MGP Ingredients, Inc., incorrectly framed the issue, mistakenly applying subparagraph (E)(i) to the production of ESI. The procedures in subparagraph (E)(ii) should have been followed in the case. . . .
 
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    The two options set out in Rule 34(b)(2)(E)(i) for producing documents are intended to prevent a party from unnecessarily creating obstacles for the other party by “dumping” mountains of documents. The over-production of ESI could raise similar problems. The drafters of the e-discovery amendments to Rule 34 recognized that the procedures in subparagraph (E)(i), which were written to apply to hardcopy documents, did not neatly fit ESI and had to be modified to apply to ESI. In particular, though the procedures in subparagraph (E)(i) work well with paper documents, which generally can be produced in only one form, they are not as effective with ESI, which can exist in different forms. Accordingly, the rulemakers crafted alternative, mutually exclusive, procedures in subparagraph (E)(ii) that are designed to apply specifically to ESI, not to supplement the procedures in subparagraph (E)(i).
 
     Subparagraph (E)(ii) was drafted to provide an ESI functional analogue to the procedures governing hard-copy documents. It was intended to provide requirements comparable, but not in addition, to those in subparagraph (E)(i) “to protect against deliberate or inadvertent production in ways that raise unnecessary obstacles for the requesting party.” The structure of subparagraph (E)(ii) was designed to track the structure in subparagraph (E)(i). Thus, the option in subparagraph (E)(ii) to produce ESI “in a form or forms in which it is ordinarily maintained” parallels the option to produce documents as “they are kept in the usual course of business,” while the second option to produce ESI “in a reasonably usable form or forms” parallels the option to produce documents in an order that categorizes the information by topic or related to a specific request.
 
(footnotes omitted)