Crowell & Moring

Document dumps deliberately comprising significant numbers of non-responsive documents are of course never appropriate and have long been frowned upon by the courts. Neither is it appropriate to deliberately bury a smoking gun document in the middle of a heap of marginally responsive documents. Both tactics long predate ESI.

But the ever-increasing volume of ESI—now often measured in terabytes—exacerbates the problem these tactics exploit. Why?

Because lawyers more and more find themselves dealing with such large volumes of documents—millions or even tens of millions of pages—that they struggle to identify only the documents responsive to an adversary’s request in a cost-effective manner and to produce those documents in a reasonably organized fashion even when acting in good faith. Well-intentioned counsel can find themselves facing claims of hiding documents in a production or dumping nonresponsive documents on the other side merely because the sheer volume of documents collected, reviewed, and ultimately produced—coupled with erring on the side of over-inclusion—yields a haystack so large that even a bucket of needles would be hard to find.

So how do lawyers looking to comply with their discovery obligations involving large ESI productions avoid—or defend against—claims of misconduct? A recent decision may provide some answers.

Is it enough to produce ESI as kept in the usual course of business?

In Kwasniewski, et al., vs. Sanofi-Aventis U.S. LLC., et al., No. 2:12-cv-00515-GMN-NJK, 2013 BL 174182 (D. Nev. June 28, 2013), it was undisputed that the defendant produced its documents in the manner in which they were maintained in the usual course of business, as Rule 34 expressly provides.

Nevertheless, the plaintiffs complained that the defendant failed to organize its document production in a manner that allowed the plaintiffs to determine which documents were responsive to which request. The plaintiffs argued that, as a result, “they have no means of knowing whether the documents are actually responsive to their discovery requests.” They moved to compel a listing from the defendant matching up documents by Bates number with each corresponding document request.

Rule 34 of the Federal Rules of Civil Procedure gives parties the choice of “produc[ing] documents as they are kept in the usual course of business” or “organiz[ing] and label[ing] them to correspond to the categories in the request.” The underlying question in Kwasniewski, therefore, was whether the defendant was obligated to do something more than simply produce its documents as they were kept in the usual course of business.

The plaintiffs, not surprisingly, argued yes. The court’s order unfortunately leaves this question unanswered, but nonetheless provides helpful guidance.

The good news for parties producing voluminous ESI is that the court denied the plaintiffs’ request for the Bates number listing and found that the defendant’s organization of its document production complied with Rule 34. This finding, however, was based on three characteristics of the defendant’s document production—namely, the inclusion of (1) a table of contents; (2) metadata; and (3) searchable text:

First, Sanofi-Aventis provided a table of contents with the documents that it produced. The table of contents describes the types of documents and the volume and page number where those documents are located. Additionally, each volume number is readily identifiable via cover sheet. Second, Sanofi-Aventis has provided metadata for all the documents, which allows the Plaintiffs to identify the documents by bates range, file path, and document title. Third, all but 33 documents are text searchable.

To be clear, the court didn’t hold that a party’s document production must include any or all of these three characteristics to comply with Rule 34. Because the defendant had included this information with its production, the court didn’t have occasion to expressly address whether it was required. The court needed only to address whether the defendant had done enough—and it found that the defendant had.

That said, the court’s reliance on these three characteristics in concluding that the defendant’s production was sufficient raises the question of whether the court considered this information required to satisfy Rule 34. That’s not necessarily a controversial question regarding metadata and searchable text, which are pretty standard—some would argue required—when reasonably available with productions of ESI. The table of contents the defendant provided, however, is a different matter.

Did the court mean to suggest that parties are obligated to provide some sort of key to their document productions if the productions are voluminous and not organized by request?

In articulating the legal standard for its analysis, the court stated that “the production of ESI must be rationally organized to enable the parties to determine if responsive documents have been produced.” It’s unclear whether the court might have found this standard unsatisfied in the absence of the table of contents.

The court arguably could have reached the same conclusion relying on nothing more than the undisputed fact that the defendant produced its documents in the manner they were kept in the usual course of business, as Rule 34 expressly allows. But the court didn’t do that. And nothing in its opinion suggests that the court viewed the table of contents as generous or charitable on the part of the defendant. Some may construe the court’s opinion as implicitly requiring parties to do more than just produce documents as they are kept in the usual course of business, at least under certain circumstances.

Regardless of what the court considered required under Rule 34, the court’s opinion suggests that parties producing voluminous ESI in the manner kept in the usual course of business can avoid—or rebut—complaints about the organization of their productions by providing a table of contents like that produced by Sanofi-Aventis, along with certain metadata and searchable text where reasonably available.

And there’s at least one more thing they should do according to the court’s decision—make clear whether they have produced documents responsive to each request. Regarding the plaintiffs’ complaint that they couldn’t determine whether the defendant had produced documents responsive to each request, the court concluded that “[t]he Plaintiffs should not have to guess which requests were responded to and which were not.” The court ordered the defendant to remedy this, which presumably could be done through supplemental responses to the request simply stating for each whether responsive documents have been produced.

Don’t forget to meet and confer … for real.

One final note about Kwasniewski—the court initially denied the plaintiffs’ motion, but did so without prejudice. Why?

Because it found that the plaintiffs hadn’t met and conferred with the defendant regarding the dispute as required before bringing the motion. Although the plaintiffs claimed to have met and conferred, the court found that they’d first requested the document production index from the defendant by facsimile just a few days before filing the motion and therefore hadn’t given the defendant sufficient time to respond, much less engaged in a meaningful meet-and-confer. The court observed that “the mere exchange of letters does not satisfy the personal consultation requirement” and that “the parties should have discussed this dispute in detail by presenting their arguments to one another and consulting in person or over the phone.”

The plaintiffs were fortunate that the court didn’t deny their motion with prejudice.

I’ve written before about the need for reasonable cooperation between parties. This case serves as an important reminder that meet-and-confer requirements are real and intended to spur genuine dispute resolution efforts by the parties.