In White, et al. v. Wiseman, et al. No. 2:16-cv-01179-CW-JCB (D. Utah July 6, 2020), Utah Magistrate Judge Jared C. Bennett ordered the plaintiff to “produce complete and full responses to the production requests at issue”, stating that “[t]he production of documents shall be Bates stamped and indexed to identify which documents are new, which documents are replacements, and which documents are responsive to which requests.”

Case Background

Approximately one year ago, the plaintiffs certified that their document production was complete, but after reviewing that discovery production, the defendants identified significant problems with the production that rendered it essentially nonresponsive to the discovery requests. For example, the plaintiffs’ production omitted whole categories of documents, generated multiple documents as single PDF documents, and delivered ESI without the native file metadata that the Court said “is essential for verification”. Admitting their mistake, the plaintiffs agreed to replace their document production with a new production.

The defendants received a portion of the replacement production on December 24, 2019, and were told to expect the remaining portion of documents in the next several weeks.  However, an initial review of the documents revealed that the replacement production suffered from its own set of deficiencies. Apart from being incomplete, the Bates numbers used in the replacement production did not correspond to the Bates numbers used in the original production. The defendants also alleged that the replacement production was so haphazardly organized that it was impossible to ascertain which documents are replaced without incurrence of substantial burden and cost. Without corresponding Bates numbers or another system for organization, the defendants were unable to determine which documents are “designated,” “re-designated,” or “undesignated” under the standing protective order—important classifications that had been negotiated at length by the parties throughout the case.

The defendants filed a motion to compel the plaintiffs to complete the document production and to organize and label the documents with corresponding Bates numbers to enable them to identify which documents were being replaced. In response, the plaintiffs argued that they should not be required “to engage in [such] a time consuming and unnecessary process” when nothing in the rules requires them to do so, while not refuting that the replacement production was incomplete.

Judge’s Ruling

In ruling on the motion, Judge Bennett stated: “In this case, the Replacement Production does not comply with Rule 34’s production standards because the documents are not organized, labeled, or otherwise arranged in a way that facilitates the AMC Defendants’ ability to understand the production. The Replacement Production contains only 1,800 out of the 5,000 documents produced in the Original Production. In addition to being incomplete, the Bates numbers in the Replacement Production do not match the Bates numbers from the Original Production and are not organized in any rational or coherent way to link the two deficient productions together.

Although J White is correct in asserting that there is no rule, per se, that requires it to match Bates numbers between two productions, this fails to consider this Court’s discretion to regulate discovery to ensure that it is relevant and proportional to the needs of this case…Because J White’s Original Production failed to abide by the terms of the original request for documents, imposing the burden upon the requesting party to decipher the connection between the Original and Replacement Production is not proportional to the needs of this case. The party that caused the problem in the first place should be responsible for the remedy.”

As a result, Judge Bennett granted the defendants’ motion to compel as discussed above and ordered the plaintiffs to comply within 30 days of the order.

Also, just a reminder that this Wednesday, July 22nd, EDRM will host the webcast Important eDiscovery Case Law Decisions for July 2020 at 1:00pm ET (12:00pm CT, 10:00am PT).  In this webinar, you’ll learn about key cases related to potential sanctions for spoliation of electronically stored information (ESI), as well as key cases related to data privacy and rights of litigants in civil and criminal cases from me, Mary Mack and Tom O’Connor.  To register for the webinar, click on the link above, then scroll down to the list of webinars and click the “Upcoming” tab, then scroll down within that tab to find this webinar and click to register for it.  Don’t miss it!

So, what do you think?  Should producing parties tie their productions to previous deficient productions via Bates number when replacing them?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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