In Partners Insight, LLC v. Gill, No.: 2:22-cv-739-SPC-KCD (M.D. Fla. Oct. 28, 2024), Florida Magistrate Judge Kyle C. Dudek ruled that “Defendants have complied with Rule 34(b)(2)(E)(i) and no further organizing or labeling is required with respect to those documents”, regarding the dispute over 180,000 pages of documents produced by the defendants.

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Case Discussion and Judge’s Ruling

In this case alleging breach of contract and misappropriation of trade secrets by the plaintiffs (who provide management assistance for optometry practices), Plaintiffs sent each Defendant a request for production shortly after filing suit. Defendants resisted the requests for “more than a year-and-a-half”. But several months ago, they finally provided a link to more than 180,000 pages of “electronically stored [emails] and documents.”

Plaintiffs were not satisfied with the response. They asked the Court to compel Defendants “to fully respond to [their] Requests for Production by producing all responsive, non-privileged documents in native format, with metadata, and with sufficient specification and identification of documents produced.” According to Plaintiffs, Defendants dumped the documents at their feet “without any discernable organization or relevance to [the] specific requests propounded”, so they could not tell which discovery requests the documents were responsive to.

Defendants insisted they met their discovery obligations as they “identified by bates stamp which files are responsive to Plaintiffs’ requests” for the non-emails, and they contended they need not do the same for the emails because those documents were provided as they are kept in the usual course of business.

In analyzing the issue and the application of FRCP Rule 34 (b)(2)(E), Judge Dudek stated: “Starting with subsection (ii)—which directs parties to produce ESI in a reasonably usable form or that which it is ordinarily maintained—Defendants have produced the responsive emails ‘as [TIFF (Tagged Image File Format)] files with load files which retain[ ] the relevant metadata and essential functionality of the native file format.’…That is sufficient.”

Continuing, he said: “Turning to subsection (i)—which governs the organization of a party’s production—Plaintiffs complain that Defendants have not identified the requests to which each email corresponds…But that’s not required…Under Rule 34, a party may produce documents ‘as they are kept in the usual course of business or…organize and label them to correspond to the categories in the request.’…If a party chooses to produce documents as they are kept in the usual course of business, as claimed here, ‘the mode of production should preserve the functional utility of the electronic information produced.’…’[T]his normally requires (1) preserving the format of the ESI and (2) providing sufficient information about the context in which it is kept and used.’”

Judge Dudek continued, stating: “To meet the first requirement, the producing party must generally produce ‘electronic documents in the format in which they are kept on the user’s hard drive or other storage device.’…As noted above, Defendants have produced TIFF files accompanied by ‘load files which retain[ ] the relevant metadata and essential functionality of the native file format.’…Generally, ‘[a] file that is converted to another format solely for production, or for which the application metadata has been scrubbed or altered, is not produced as kept in the ordinary course of business.’…But courts have accepted TIFF files like those here…And Plaintiffs have not claimed, let alone shown, that the emails are unsearchable or that metadata is missing. Thus, it appears the first requirement is satisfied.”

He added: “Turning to the second requirement, a producing party provides enough information about the context in which emails are kept and used if it provides ‘the date the email was transmitted, perhaps along with the parties to the email (sender and recipients), and the subject line.’…Nothing in the record suggests Defendants omitted this information. At bottom, Plaintiffs have not shown that Defendants’ response is deficient under Rule 34, which allows the production of ESI as ‘kept in the usual course of business.’”

Stating: “The drafters of 34(b)(2)(E) contemplated that parties requesting ESI would be able to organize it themselves—in their own way, to their own satisfactory level of thoroughness, and at their own expense—through the use of text-searching technologies like filtering, grouping, and ordering”, Judge Dudek ruled: “contrary to Plaintiffs’ suggestion otherwise, there is nothing in Rule 34 that requires a party who elects to produce documents as they are ordinarily kept to also organize them…Thus, because the mirror images were produced as they are kept in the usual course of business, Defendants have complied with Rule 34(b)(2)(E)(i) and no further organizing or labeling is required with respect to those documents.”

So, what do you think? Do you agree with the Court’s logic in ruling that “no further organizing or labeling is required”, given that the documents were produced in TIFF format? 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, an Affinity partner of eDiscovery Today.

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