Courts are being asked, with increasing frequency, to require parties responding to document requests to organize and label electronically stored information (ESI) to correspond to the document request categories for which it is produced. Responding parties often resist, arguing that this shifts the substantial expense of reviewing documents from the requesting party to them. Requesting parties retort that without organization, production of ESI can become nothing more than a data dump, a mass of useless information produced for the sole purpose of hiding a few critical documents.
If you find yourself on the responding side of this request, facing the daunting task of correlating thousands of emails, instant messages, and electronic documents at significant cost to your soon-to-be-unhappy client, you are bound to ask a question: Do I really have to do that? As with all good legal questions, the answer is “it depends”—namely, on how your court interprets Federal Rule of Civil Procedure 34(b)(2)(E).