There has long been a split of opinion as to the applicability of the “document correlation” provision of Rule 34(E)(i) to the production of ESI.* In April of this year, the Eastern District of Pennsylvania weighed in.** There is, however, a straightforward way to avoid the problem. It involves negotiation, cooperation, and metadata.
“Document correlation” is the requirement that a producing party label produced documents to correspond to categories in the request for production of documents. Doing so with voluminous ESI can be exceedingly costly.
The starting point is Fed.R.Civ.P. 34(b)(2)(E). In pertinent part, Rule 34(b)(2)(E) provides:
(E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:
(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 [e., document correlation];
(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms…. [Emphasis added].
It is immediately apparent that: parties can stipulate out of the Rule’s requirements; section (E) refers to “documents” or ESI; subsection (i) refers to “documents”; and, subsection (ii) refers to ESI.
The question that initially arises is whether the drafters intended “documents” in subsection (i) to apply to ESI? If so, ESI must be produced as kept in the usual course or labeled to respond to categories in the request. If not, ESI must be produced only in the form(s) in which it is maintained or is reasonably usable.
An ABA article described the Fed.R.Civ.P. 34(b)(2)(E) debate. A. Gordon, “Tips for Organizing ESI per the Document Request” (ABA Busn. Torts & Unfair Competition Mar. 14, 2016):
[W]ith the advent of the electronic age and the boom of ESI in litigation, it quickly became apparent that applying the paper-document production requirements to the unique characteristics of ESI was not a good fit. Unlike paper documents, ESI is not physically stored and organized in file folders, boxes, or cabinets. In the usual course of business, ESI is placed randomly on hard drives or in a storage device and is organized and presented to users as needed for specific purposes by computer applications…. [Emphasis added].
Thus, it may be difficult to produce ESI as “kept in the usual course of business” and may also be difficult and disproportionate to require that it be labeled to correspond to the categories in the request for production. For example, consider the burden imposed by labeling 10,000 emails to correlate with 25 document requests.
There are two competing views regarding the two subsections of Rule 34(b)(2)(E). One view is that subsections (i) and (ii) are mutually exclusive. Id. Under this view, subsection (i) applies to paper documents and subsection (ii) applies to ESI. They are seen as mutually exclusive. The other view is that subsection (i) applies to both paper documents and ESI, and subsection (ii) adds an additional requirement for production of ESI. In this model, the two subsections overlap.
The difference has consequences. For example, Ms. Gordon stated:
If both (i) and (ii) apply to ESI, then ESI that is produced in a reasonably usable form, but not in the form in which it is ordinarily maintained, must be organized and labeled to correspond to the categories in the requests for production.***
Of course, the opposite is true if only subsection (ii) applies to ESI. Production in the form specified, as kept in the ordinary course, or a reasonably usable form would suffice, and the producing party need not correlate each document with the applicable request.
Ms. Gordon described the conflicting case law and wrote: “The good news is that there appears to be a movement away from this [additional requirement] reading of Rule 34. Legal scholars and, with increasing frequency, courts have found that requesting parties can avail themselves of the guarantees of subpart (i) or (ii) but not both.”
A leading decision is Anderson Living Trust, 298 F.R.D. at 514, passim. In Anderson, the court reviewed the history of the Rule and held that E(i) and E(ii) are mutually exclusive. E.g., id. at 527. The court reasoned that the term “documents” in subsection (i) does not include “ESI,” the term used in subsection (ii). Thus, only E(ii) would apply to production of ESI.
The Anderson court concluded: “Requesting parties are entitled to the guarantees of (E)(i) or (E)(ii), but not both.” Id.****
To the same effect, another court wrote: “This distinction between a party’s obligations with respect to ESI and traditional, hard copy documents permeates the Rules. Rule 34(a)(1) and the Advisory Committee Note thereto acknowledge that ESI, and therefore, its treatment, is distinct from hard copy documents.”*****
In Penn Engineering, 2021 WL 1224112, at *7, the court simply accepted producing counsel’s statement that the ESI had been produced as it was maintained in the ordinary course. An attorney stated that “they’ve been produced in the ordinary course….” Id. No explanation was provided. The Penn Engineering court concluded that, because production was as the documents were kept in the ordinary course of business, Rule 34 did not require document correlation.
Nevertheless, despite the relatively light burden of Penn Engineering, the differing interpretations of the Rule may present a production dilemma. However, there is a viable “work around.”
Given the uncertain application of the two subsections of Rule 34(b)(2)(E), the best solution is a properly framed request for production coupled with an early conference of the parties. Rule 34(b)(1)(C) permits a requesting party to specify the form or forms of production. To the same effect, Maryland Rule 2-422(b) states that a request may specify the form of production. Additionally, the ESI Principles of the District of Maryland call for discussion of the appropriate form or forms of production. See Principle 2.02(b)(2) & 2.04(a).
Generally, a requesting party can, and should, specify requested metadata fields. For example, the District of Maryland ESI Principles call for consideration of the production of metadata “in every case.” Principle 2.04(d & f); Appendix 1.
Production of metadata is guided by, and amplified in, the hybrid production protocol, Appendix 2.1 of the ESI Principles, and the native production protocol, Appendix 2.2. Both call for production of “dog tag” metadata, such as the author, custodian, source, and path of the produced ESI. These, and other similar, metadata fields are routinely collected and exchanged.
After the requesting party specifies the requested metadata fields, it should offer to confer with the producing party to discuss the form or forms of production, including the metadata fields to be produced. In the District of Maryland, the appendices to the ESI Principles provide persuasive guidance.
If ESI is produced with appropriate metadata, it likely makes no difference whether subsection (E)(i) or (E)(ii) governs. The produced ESI can be loaded into a litigation review platform, such as Digital War Room, Relativity, Reveal, or others. At that point, the receiving party will have the information and ability to determine how the documents were kept “in the usual course of business” by sorting by custodian, folder, file path, sender, recipients, or dates. That eliminates any requirement of document correlation under (E)(i). Further, those metadata fields will show how the ESI was ordinarily maintained, as required by (E)(ii). The data will be reasonably usable if produced in native form or searchable static form with appropriate load files.
For example, if appropriate metadata is provided, the receiving party can determine what was stored in Jane Smith’s folders named “Widget Sale to ABC” or “Hot Docs” It can easily ascertain what documents were authored, or email sent by or to, John Jones. And, it can quickly locate all documents stored in c:\users\jones\Documents\Transaction_w_ABC Corp. That easily available functionality produces the “documents as they are kept in the usual course of business,” for purposes of (E)(i), and “produce[s] it in a form or forms in which it is ordinarily maintained,” for purposes of (E)(ii).
“The nimbleness of current search functionality with ESI software is the very reason the Advisory Committee found it unnecessary to make (E)(i)’s organization guarantees applicable to ESI.” Ark. River Power Auth. v. Babcock & Wilcox Power Generations Grp., Inc., 2015 WL 2128312, at *11 (D. Colo. May 5, 2015), quoting Anderson Living Trust, 298 F.R.D. at 527. “A party demonstrates that it has produced documents in the usual course by revealing information about where the documents were maintained, who maintained them, and whether the documents came from one single source or file or multiple sources or files…. Defendants provided Plaintiff with fully searchable documents, sortable by metadata fields, in a folder structure organized by custodian. This is sufficient to satisfy the requirements for document production of ESI under Rule 34.” Spilker v. Medtronic, Inc., 2015 WL 1643258, at *4 (E.D.N.C. Apr. 13, 2015) (citation omitted); accord TJF Servs., Inc. v. Transportation Media, Inc., 2019 WL 7599942, at *4 (E.D.N.C. Jan. 22, 2019). “[A] party satisfies it[s] obligations under Rule 34 when the party provides documents that are searchable and/or sortable by metadata fields.” Johnson v. Italian Shoemakers, Inc., 2018 WL 5266853, at *2 (W.D.N.C. Oct. 23, 2018). “Even though Defendants may not have produced the documents as kept in the normal course of business or according to the custodian, the records are easily sorted according to these fields and, therefore, their production is compliant with Rule 34.” Lutzeier v. Citigroup Inc., 2015 WL 430196, at *8 (E.D. Mo. Feb. 2, 2015). In a decision pre-dating the 2015 amendments to the Federal Rules, one court wrote: “The FDIC represents that the defendants can use metadata associated with these documents to identify the original location of the materials…. Strictly speaking, this may not be production in the ‘usual course of business,’ but the practical difference is elusive. Conversely, requiring the FDIC to organize its production according to the defendants’ numerous discovery requests would impose a substantial burden…. Under the circumstances, we will not require the FDIC to organize its Phase II production according to the defendants’ numerous discovery requests.” Fed. Deposit Ins. Corp. v. Giannoulias, 2013 WL 5762397, at *3 (N.D. Ill. Oct. 23, 2013) (compare differentiation with Phase I which lacked metadata); see McKinney/Pearl Rest. Partners, L.P. v. Metro. Life Ins. Co., 322 F.R.D. 235, 250-51 (N.D. Tex. 2016) (native production with system metadata that includes file name and file path, and possibly custodian, deemed sufficient). “Rule 34(B)(2)(E)(i) is satisfied where ‘the production allows the requesting party to reasonably determine what documents are responsive to its requests.’” Nat’l Jewish Health v. WebMD Health Servs. Grp., Inc., 305 F.R.D. 247, 254 (D. Colo. 2014).
As to what metadata is necessary, “Commentary to [Sedona] Principle 12 provides criteria for determining whether metadata should be produced in a case: “(i) ‘what metadata is ordinarily maintained’; (ii) the relevance of the metadata; and (iii) the ‘importance of reasonably accessible metadata to facilitating the parties’ review, production, and use of the information.’ ” Arkansas River, 2015 WL 2128312, at *12. Further, the duty to cooperate and the District of Maryland’s ESI Principles suggest, if they may not compel, discussion as to the fields to be produced.
Notably, Maryland Rule 2-422(d)(1) parallels Fed.R.Civ.P. 34(b)(2)(E)(ii). The State Rule provides:
A party who produces documents or electronically stored information for inspection shall (A) produce the documents or information as they are kept in the usual course of business or organize and label them to correspond with the categories in the request, and (B) produce electronically stored information in the form specified in the request or, if the request does not specify a form, in the form in which it is ordinarily maintained or in a form that is reasonably usable.
Thus, the same “work around” should be applicable in Maryland courts.
See also J. Gilliland, “Further Lessons in NOT Producing Discovery as PDFs” in Bow Tie Law at bowtielaw.com. In that blog, Josh discusses the application of Rule 34(b)(2)(E) to a dump of large PDFs without complying with (E)(ii).
* See generally, Annot., “Construction and Application of Fed.R.Civ.P. 34(b)(2)(E), Governing Production of Electronically Stored Information (ESI),” 14 A.L.R. Fed. 3d Art. 1 (2016).
** Penn Engineering & Mfg. Corp. v. Peninsula Components, Inc., 2021 WL 1224112 (E.D. Pa. Apr. 1, 2021).
*** See generally Anderson Living Tr. v. WPX Energy Prod., LLC, 298 F.R.D. 514, 526 (D.N.Mex. 2014) (explaining “substantial practical differences between the two production procedures”).
**** Accord, Cook Martin Poulson PC v. Smith, 2020 UT App 57, ¶ 31, 464 P.3d 541, 550 (Ct. Apls. Utah 2020); SolarCity Corp. v. Doria, 2018 WL 467898, at *5 (S.D.Cal. Jan. 18, 2018); TetraVue, Inc. v. St. Paul Fire & Marine Ins. Co., 2017 WL 1008788, at *7 (S.D.Cal. Mar. 15, 2017); see generally Nguyen v. Roth & Rau AG, 2009 WL 10682036, at *2 (D.Md. Jul. 28, 2009) (email must be produced with attachments).
***** Kissing Camels Surgery Ctr., LLC v. Centura Health Corp., 2016 WL 277721, at *3 n. 13 (D.Colo. Jan. 22, 2016); contra, United States v. Maverick Mktg., LLC, 427 F. Supp. 3d 1386, 1397 (Ct. Int’l Trade), reconsideration denied, 439 F. Supp. 3d 1329 (Ct. Int’l Trade 2020).