Adapting the “Ordinary Course” Production to ESI

A recent decision from the U.S. District Court for the District of Kansas sheds light on how a party may isolate, categorize, and produce emails in accordance with Federal Rule of Civil Procedure 34 absent a governing agreement or court order.

Federal Rule of Civil Procedure 34 provides:

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;

(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; and

(iii) A party need not produce the same electronically stored information in more than one form.

In Heartland Food, the producing parties produced over 21,000 emails, plus attachments, as TIFF images with accompanying load files. Heartland Food Prods., LLC v. Fleener, No. 18-cv-2250-JAR-TJJ, 2019 U.S. Dist. LEXIS 101113, at *3 (D. Kan. June 17, 2019). The emails at issue had been located through a simple search for the names of the individuals relevant to the opposing party’s discovery requests and “produced in the order of the hits, without any reorganization or manipulation, with each email’s attachment(s) adjoining the email to which it corresponded.” Id. at 7 n.21. In response, the requesting party filed a motion to compel that the emails be produced in PDF or native format and the producing parties identify by Bates numbers which emails are responsive to each discovery request. The producing parties argued that emails were produced in the form required under Rule 34 and identified in a way authorized by Rule 34.

First, the court determined that even though the parties had an agreement on the production of ESI, the agreement contained an ambiguity and therefore the agreement did not govern the format of the email production and the requesting party failed to specify a format for production in its discovery requests. Thus, the court found that the producing parties were free to produce the emails in the format of their choice, the production of emails in TIFF format with accompanying load files preserving the metadata was a reasonable form of production, and the producing parties were not required to also produce the emails as PDFs.

Next, the court examined how the producing parties isolated and categorized the emails. Rule 34(b)(2)(E)(i) allows parties, absent a stipulation or court order, to produce documents in one of two ways: (1) organizing and labeling the documents to correspond to the categories in the request for documents, or (2) by producing the documents as they are kept “in the usual course of business.” Production of documents as they are kept “in the usual course of business” is not defined in Rule 34. The court looked to David J. Kessler and Daniel L. Regard II’s “The Federal Judges’ Guide to Discovery,” which lays out that “Generally, a producing party produces emails in the usual course when it provides sufficient information about the email, typically including the custodian for the email, information to link emails with attachments, and the date and time the email was sent or received.” Id. at 7 (quoting David J. Kessler & Daniel L. Regard II, Format of Production, in The Federal Judges’ Guide to Discovery Edition 3.0 186, 189 (The Electronic Discovery Institute, 2017). The court determined that emails isolated by searches and produced without any reorganization or manipulation constituted a production of documents as kept “in the usual course of business” in compliance with Rule 34. Thus, the producing parties were not required to identify by Bates number which emails are responsive to which requests.

Heartland Food provides helpful guidance on the isolation, categorization, and production of emails. To begin, planning and discussion among counsel as to scope/method of identifying documents and format of production can prevent disputes later on. Developing a clear agreement on the front end is essential. Furthermore, using Heartland Food as guidance, it is proper under Rule 34 to produce emails in the order that they are returned in a search for relevant keywords: No additional effort to reorganize the documents is necessary. Lastly, for courts that follow Heartland Food, there is no obligation for a party to identify specific documents by Bates numbers responsive to each request if the documents are produced as they are kept “in the usual course of business.”