A recent order issued by M.J. Paul Grewal in Venture Corp. Ltd., et al. v. Barrett, No. 5:13-cv-03384, 2014 WL 5305575 (N.D. Cal. October 16, 2014) provides a useful reminder for all litigators: “Rule 34 (Producing Documents, Electronically Stored Information, and Tangible Things) is about as basic to any civil case as it gets. And yet, over and over again, the undersigned is confronted with misapprehension of its standards and elements by even experienced counsel. Unfortunately, this case presents yet another example.”
The parties apparently had the right idea to start—they tried to meet and confer to reach a document and ESI production protocol. But the parties had different stories about the course of discussion in those meet and confers, and most importantly, plaintiffs couldn’t dispute the fact that they subsequently produced approximately 41,000 pages—some on a flash drive and others via email—without any identifying information. Plaintiffs’ decision to do so was spurred by defendant’s request that documents and ESI be produced in a manner identifying the specific request(s) to which they were responsive. Plaintiffs saw this as a deal-breaker and unwisely upped the ante; they failed to include so much as a custodial index or a summary of the documents produced.
The court fairly noted that “[e]ven in the days of paper measured by the carton and large, cold-storage warehouses, the document dump was recognized for what it was: at best inefficient and at worst a tactic to work over the requesting party.” So the court properly ordered plaintiffs to “try again,” requiring them to organize the production in some way (e.g., labeling each individual document and/or providing custodial and/or other organizational information compliant with F.R.C.P. 34) and producing a load file enabling access to the native files and metadata.
Frankly, this is all obvious. But it’s a good lesson for all of us: remember not to forget the simple things. While proportionality and cooperation win the day in the eyes of most courts these days, it’s worth a reminder that even if adversaries are difficult to deal with or uncooperative, that won’t justify failure to comply with basic requirements under the Federal Rules. If an adversary is stubborn, uncooperative, unreasonable or all three, stay above board. Courts would of course rather that parties cooperatively resolve looming discovery disputes, but generally will step in to at least facilitate a resolution when cooperation is not an option.
Bottom line: always remember the basics. For example, don’t accept candy from strangers…except, of course, on Halloween.
