Anderson Living Trust v. WPX Energy Production, LLC, 2014 WL 930869 (D.N.M. March 6, 2014).
In this matter, the parties agreed to a discovery plan in which the defendants would scan certain hard copy documents in the order they were maintained within each file and convert them to fully searchable PDFs for production. The defendants complied with their agreement, and also provided an index of the production to the plaintiffs. In spite of their compliance, the plaintiffs sought to compel the defendants to label their production of over 20,000 scanned documents under Fed.R.Civ.P. 34(b)(2)(E)(i). The defendants argued they had done everything required of them, but the court initially agreed with the plaintiffs and ordered the defendants to include a supplement to their production with the required labeling. The defendants filed a motion to reconsider, arguing that Rule 34(b)(2)(E)(i) “applies only to hard copy documents, not to ESI.” The plaintiffs argued that the documents were not originally ESI, but hard copy converted to PDF. Therefore, even if Rule 34(b)(2)(E)(i) did only apply to hard copy documents, it should apply here in this case because the materials were originally hard copy. The court pointed out that the plaintiffs requested the documents be converted to PDF, thus stipulating away the requirements of 34(b)(2)(E)(i). Accordingly, the court upheld the defendants’ motion to reconsider, thereby declining to order them to arrange and label their production. The court further reasoned that the “drafters of 34(b)(2)(E) contemplated that parties requesting ESI would be able to organize it themselves,” and that the “nimbleness of current search functionality. . . is the very reason the Advisory Committee found it unnecessary to make (E)(i)’s organization guarantees applicable to ESI.”