Can a Requesting Party Demand Bates Numbers and Legible Documents?

In a wage-and-hour claim, the Court in Bobb v. FinePoints Priv. Duty Healthcare, LLC, 2024 WL 4355048, at *1 (D. Md. Sept. 30, 2024), was faced with two “momentous” 😊 issues on a motion to compel:

Plaintiffs request an order compelling Defendants to make the following categories of production…:

1. Bates-stamped documents of all previously produced documents; [and]
2. Legible and/or complete versions of previously produced documents that were either illegible or blank….

BATES NUMBERING

The Court wrote that a Bates number is a “[s]equential numbering system used to mark and identify individual pages of documents.”  [citation omitted].   It “is standard practice in modern litigation and in this District….”  Further the Court’s Principles for the Discovery of Electronically Stored Information in Civil Cases app. 2.1, 2.2 (D. Md.) (the “ESI Principles”) encourage use of Bates numbers.

In fact: “For over one hundred years, complex litigation has relied upon the ubiquitous Bates stamp to try and maintain order and clarity in paper evidence by placing sequential numbers on documents.”  Ralph C. Losey, “Hash: The New Bates Stamp,” 12 J. Tech. L. & Pol’y 1, 2 (2007).

Ralph notes that “Edwin G. Bates invented the Bates numbering machine, and the Bates Manufacturing Company patented it in 1893….  A Bates machine uses a self-inking stamp and a mechanically advancing sequence of numbers. Each time the handle of the machine is pressed, a number is imprinted on the document below. With every press of the handle, the number advances sequentially and the next number is inked onto the document. ”  Id. at *4.  “Absent some unusual circumstances, all American courts accept this system of identification….”  Id. at *5.  As Ralph notes, stampers were replaced by computer-generated sticky tabs.

The Bobb Court wrote:

The Court turns first to Plaintiffs’ request that Defendants provide Bates-stamped versions of all previous documents. This request is proper under Federal Rule of Civil Procedure 34(b)(1)(C), which permits a party to “specify the form or forms in which electronically stored information [(“ESI”)] is to be produced.” [emphasis added].

Defendants asserted that they had Bates numbered the production; however, the Court wrote that “Defendants did not employ standard Bates numbering, which requires the use of a unique, sequential alphanumeric designation for each page.”  Bobb, 2024 WL 4355048, at *3.

Ralph’s article supports this: “[D]ocuments produced by a witness could be Bates labeled with his or her name. For instance, a thousand pages of medical records produced by a Dr. Smith could be Bates labeled ‘Dr. Smith 0001 – Dr. Smith 1000.’ At a deposition, hearing, or trial, a lawyer could easily identify a particular document within an entire production. For example, a lawyer would say ‘the MRI report of April 7th 1997 Bates stamped ‘Dr. Smith 0075.”’ Everyone could quickly find that document. Moreover, it would be clear on the record of the proceedings precisely to what document and to which version of the MRI report the lawyer was referring.”  Losey, “Hash: The New Bates Stamp,” 12 J. Tech. L. & Pol’y at 7.

“These linear systems, which were developed in the nineteenth and twentieth centuries for the discovery and production of documents, continue to be used today by most attorneys for both ESI and paper discovery.”  Ralph C. Losey, “Predictive Coding and the Proportionality Doctrine: A Marriage Made in Big Data,” 26 Regent U. L. Rev. 7, 13 (2014).

The Bobb Court granted the Bates-stamping motion and “Defendants will be directed to employ the Bates numbering system set out in Appendix 2.2 of the ESI Principles, unless the parties agree on some other numbering method.”  2024 WL 4355048, at *3.

PRODUCTION OF ILLEGIBLE OR INCOMPLETE DOCUMENTS

The Court wrote:

The Court next considers Plaintiffs’ contention that certain categories of documents were either illegible or blank. In particular, Plaintiffs identify three files, one of which is allegedly illegible, and the other two of which are blank…. Under Rule 34(b)(2)(E), unless the request specifies otherwise, a party responding to a discovery request must “produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms[.]” …

That was undisputed: “Defendants do not address Plaintiffs’ contention at all in their Response…. Thus, they do not deny that the information Plaintiffs seek is relevant and proportional, nor do they deny that the information is currently not in a useable form.”

The Bobb Court ruled: “Because Plaintiffs are entitled to readable forms of information produced during discovery, the Motion to Compel will be granted with respect to this category.”  Id. at *3.

The Court also addressed seven document requests, finding them relevant, proportional, and seeking documents within the control of the responding party.

MEET AND CONFER

Remarkably, the parties “fully briefed the Motion by serving their papers on each other and conferring before Plaintiffs filed the entire set of briefs and related documents on the Court’s docket, in accordance with District of Maryland Local Rules 104.7 and 104.8.”   Id. at *1 (emphasis added).

What I find remarkable is that litigants pressed these issues in a United States District Court.  Sometimes Discovery Disputes Do Not Bring Out the Best in Us – Part II (Jun. 20, 2024).

One court recently wrote: “There is no need to waste much time parsing and sifting through the parties’ back and forth regarding each of the nearly two dozen questions and responses the parties have asked the court to look at for them. Life is short.”  Id. (emphasis added; citation omitted).  “It is not out of line to ask counsel to spare a thought for the folks they expect to decide their cases and resolve their discovery squabbles.”  Id. (citation omitted).

These issues – Bates stamping and legibility – are a “no brainer.”  Id. (citation omitted).

The District of Maryland’s Principles for the Discovery of ESI in Civil Cases are posted on the Court’s website. Appendix 1 and Appendix 2.1 suggest that parties discuss Bates numbering.  Further, ¶10 of Appendix 2.2 suggests a four-digit unique alphanumeric prefix following by a nine-character numeric value, followed by pagination.  “By way of example, a Microsoft Word document produced by ABC Corporation in its native format might be named: ABCC000000123.docx.”

The ESI Principles were drafted in 2016.  See A. Shelton and M. Berman, “The ESI Principes of the United States District Court for the District of Maryland for the Discovery of Electronically Stored Information in Civil Cases,” in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), Chap. 7.[1]

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[1] For full disclosure, I was the chair of the Bar Association drafting committee.