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.