Be Careful What You Bargain For…

 Joshua Gilliland at Bow-Tie Law’s Blog  recently posted a concise and thought provoking blog post on a form of production case. In re Bisphenol a Polycarbonate Plastic Prods. Liab. Litig., 2010 U.S. Dist. LEXIS 52444 (W.D. Mo. May 26, 2010). In this products liability case, the plaintiffs filed a motion to compel based on the manner in which the defendants produced documents.
The court began its analysis with FRCP 34(b)(2)(E):

Rule 34(b)(2)(E) states that, unless the parties stipulate or the court orders otherwise, a party must produce documents as they are kept in the ordinary course of business “or must organize and label them to correspond to the categories” in the request for production. The rule also states that electronically stored information must be produced in the form it is maintained “or in a reasonably usable form…

The plaintiffs’ motion to compel was not based on a failure to produce (the defendants had produced all relevant documents), rather, the plaintiffs argued that the defendants had failed to present proof that the documents were produced in the manner in which they were kept in the ordinary course of business.

Based on the court’s Document Production Protocol Order, which incorporated the parties agreement on production of electronic information, the court denied the plaintiffs request for relief:

The Court concludes the parties essentially bargained for a particular method of document production. They also bargained for the exchange of certain information about the documents. In doing so, the parties did not agree to require proof confirming that information was produced in the manner it was maintained. Regardless of whether such proof is required by Rule 34(b)(2)(E), the parties’ agreement and that Court’s subsequent order supplanted the Rule’s requirements.

As Joshua Gilliland accurately points out, it is unclear from the opinion whether there was any form of production gamesmanship by the defendants. It is also unclear what format the defendants produced the ESI at issue. Nevertheless, the take-away lesson from this case is that where  parties enter into an agreement on production, it is crucially important to be explicit about production formats and the burdens for demonstrating compliance. This is especially true where an agreement between the parties is later codified into a court order. Additionally, the case underscores the importance of thinking prospectively about the production format of data responsive to a discovery request.

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