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Tech Tip: Producing ESI in the Ordinary Course: Complying with Federal Rule 34(b)(2)

Tech Tip: Producing ESI in the Ordinary Course: Complying with Federal Rule 34(b)(2)

The Federal Rules of Civil Procedure (FRCP) expressly provide for the discovery of electronic documents and other “electronically stored information” or ESI. Despite the substantial and obvious differences between traditional hard copy files and ESI, FRCP 34(b) imposes identical production requirements on both—either (a) produce them “as they are kept in the ordinary course of business,” or (b) “organize and label them to correspond” to specific document requests. Parties producing voluminous records usually choose the former method, often because producing documents as they are kept in the ordinary course usually requires less time and expense. However, because the FRCP contains neither guidance nor a clear definition of what constitutes the “ordinary course” such productions can be fertile ground for conflict, particularly when dealing with ESI.

Parties often seek to establish compliance with the ordinary course requirement by merely stating that records are being produced as they are kept in the usual course of business. Such conclusory statements, however, routinely are held insufficient to satisfy the producing party’s burden. Rather, the producing party should be prepared to demonstrate through competent, non-conclusory evidence that documents were produced as they had been maintained in the ordinary course. Courts generally have found the following procedures sufficient to satisfy the rule:

1. Provide information (often in affidavit-form) regarding the specific method by which the documents or ESI are maintained in the ordinary course of business. This may include identifying custodians and a description of the physical location and specific hardware, software and filing system utilized to maintain the ESI;
2. Provide metadata for ESI. Such metadata should not be altered and likely should include at least the original file name and file path;
3. Email should be produced with attachments (immediately following or otherwise correlated) and in logical order such that the email is organized (or may be electronically sorted) by custodian and by date; and
4. Produce ESI in electronic and text searchable format – particularly if the production format differs from that used in the ordinary course.

While these procedures can yield efficiencies and reduce the likelihood of a dispute, as we wrote in our Fall 2018 newsletter, agreeing upon a collection and production protocol (including production format, metadata fields to be exchanged, among others) is the best practice.