June 16, 2016 Articles

The E-Usual Course of Business: ESI Application to Rule 34 Requirements

What exactly does "the usual course of business" mean in today's electronic world?

By Amanda E. Gordon

As the world has evolved, more and more of the legal industry has become automated. No longer is document collection accomplished by loading filing cabinets onto trucks but by forensically imaging hard drives and backup tapes. Gone are the days of staples or paper clips. These metal tools have been replaced with documents that reflect the parent-child relationships commonly used to logically differentiate electronic documents. In this “paperless” world, most documents are exclusively stored in electronic format rather than in printed form.

The electronic world has grown and with it the ever-present issue of legal discovery costs and how best to balance the burden and expense of producing electronically stored information (ESI). Currently, Rule 34 of the Federal Rules of Civil Procedure allows parties to produce documents in one of two ways: (1) by organizing and labeling them to correspond to the categories in the request or (2) by keeping them as they are in the usual course of business. Producing parties often prefer to provide documents as they are kept in the usual course of business because it is less burdensome and costly. Requesting parties may also want the documents as they are maintained on a day-to-day basis for strategic reasons. But what exactly does the “usual course of business” mean in today’s electronic world?

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