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ESI Produced as Kept in the Usual Course of Business Is Acceptable

Why This Alert Is Important

If a litigant requires ESI production in a particular format, they must make it clear in their discovery requests, otherwise ESI produced “as it was kept in the usual course of business” is acceptable as long as it is “reasonably usable.


In this appeal of a product liability ruling, defendants produced over 1,000 documents totaling over 13,000 pages in four rounds of production. Plaintiffs disputed that the ESI was “kept in the usual course of business” in this format, and moved under FRCP 34(b) to compel defendant to “organize and label” the ESI according to the plaintiff’s discovery requests. 

Plaintiffs argued that they were deprived of “critical context” because the defendants’ productions “effectively wrote over metadata from the files that identified their original author and/or custodian, date of creation, and file path.” They claimed that the custodians (employees of Defendants’) “extracted files from various electronic locations, compiled them into folders designated for each employee, then provided them to [Defendants’] vendor who prepared the materials for production.” 

Defendants countered that their ESI production was not subject to the “organize and label” provisions of Rule 34(b)(2)(E)(i), which states, “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.” 

Ruling Summary

  • Analysis of Rule 34(b)(2)(E). The first two parts of 34(b)(2)(E) are relevant to the issue at hand, (i) as cited above, and (ii), which states, “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.” With courses split as to whether (i) applies to ESI as well as hard copy documents, the court found that the two provisions had “no overlap” and that the “plain text” of the rule differentiates between the two types of evidence. 
  • Production Proper under 34(b)(2)(E)(ii). While the prevalence of electronic data in modern courtrooms means some ESI shares characteristics of printed “documents,” the Court noted that ESI’s searchability—the ability to “locate relevant portions of ESI through search terms without formal labeling or categorization”—is why documents and ESI are treated differently by FRCP 34(b). The defendants’ complied with the plaintiffs’ requested form of production and search terms used to produce ESI, and plaintiffs did not argue that the ESI was “not usable,” so the court found the ESI production proper and re-production not warranted. 
  • Need for information “not minimized.” Despite the courts’ denial of the plaintiffs’ motion, it did affirm that plaintiffs could follow up via depositions to address any areas where they “lack vital information about… ESI” and reminded defendants that all ESI produced must comply with the protocol agreed upon by the parties and with provisions of Rule 34(b)(2)(E). 

I agree with the distinction between Rule 34(b)(2)(E)(i) and (ii) applying to hard copy documents and ESI respectively. But the way defendant produced the ESI here seems to have deleted or omitted certain metadata, which should not have occurred. And the elephant in the room that the court doesn’t discuss is that the defendant’s employees, not counsel, seem to have done the ESI collection themselves, not under the supervision of counsel.

Hon. Andrew Peck (ret.), Senior Counsel, DLA Piper

Case Law Tip

Have questions on how the FRCP applies to e-discovery? Want to make sure your arguments align with critical rules governing e-discovery? Download this FRCP E-Discovery Quick Guide to get all your questions answered.

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