United States District Court, N.D. California, San Jose Division
ORDER RE: MOTION TO COMPEL
(Re: Docket No. 44)
PAUL S. GREWAL, Magistrate Judge.
Most lawyers (and hopefully judges) would be forgiven if they could not recite on demand some of the more obscure of the Federal Rules of Civil Procedure. Rule 80 (Stenographic Transcript as Evidence) and Rule 64 (Seizing a Person or Property) come to mind. But 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.
After Defendant James P. Barrett served initial document requests and Plaintiffs Venture Corporation Ltd. and Venture Design Services, Inc. responded, the parties met and conferred about how the Ventures would produce documents. So far, so good. But despite their best efforts, the parties could not agree. Barrett wanted the documents organized and labeled to identify the requests to which they were responsive. The Ventures demurred at such an obligation. What followed was a production of approximately 41, 000 pages, even though there was nothing close to a meeting of the minds. Because this production did not square with the requirements of either Rule 34(b)(2)(E)(i) or (ii), the Ventures shall try again, as explained below.
Even 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. Rule 34 aims to prevent such a scenario with two specific and separate requirements. First, "[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." Second, "[i]f a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. A party need not produce the same electronically stored information in more than one form."
Barrett is the owner of three patents on an air monitor and gas scrubber component. The Ventures say those patents belong to them, and filed this suit to confirm their ownership. Barrett countersued, saying the Ventures welched on commitments they made to induce Barrett to assign the patents.
After the initial case management conference and the filing of a scheduling order,  Barrett began serving document requests together with other discovery. After the Ventures served objections, but no documents, the parties met by telephone. What happened during that call is hotly contested. The Ventures say Barrett agreed to accept documents in bulk and in PDF or native format despite initially insisting on an identification of which documents correspond to each request. Barrett denies this, saying that he only agreed to review whatever the Ventures would produce while reserving the right to later demand identification by request.
What is not contested is that the Ventures proceeded to produce, on flash drive and by email, approximately 41, 000 pages. The drive and email contained no custodial index, no table, no information at all-just folders of the files themselves. After Barrett took various depositions, he followed up on what he understood the original deal to be by serving interrogatories requesting identification of what documents responded to various categories. Barrett served the follow-up interrogatories by email pursuant to Fed. Civ. P. 5(b)(2)(E), just 30 days before the discovery cut-off set out in the court's scheduling order.
The Ventures balked at what they claim were untimely requests and more generally unwarranted demands calling for document and ESI production other than as they are kept in the usual course of business. Barrett then moved to compel answers to the interrogatories and requests for production and sanctions in the form of attorney's fees and costs.
The court has jurisdiction under 28 U.S.C. § 2201 and 1332(a)(1) and (2). The parties have consented to magistrate judge jurisdiction under 28 U.S.C. § 636(c) and Fed.R.Civ.P. 72(a).
The Ventures may be right that Barrett's final round of interrogatories were untimely. By serving the interrogatories by email under subsection (E) of Rule 5(b)(2), Barrett pushed the Ventures' deadline to respond three days past the discovery cut-off, by operation of Rule 6(d). Under Civil L.R. 37-3, "[d]iscovery requests that call for responses or depositions after the applicable discovery cut-off are not enforceable, except by order of the Court for good cause shown." But the court need not resolve whether Barrett has shown good cause here, because either way the Ventures' production did not square with the rules.
Rule 34(b)(2)(E)(i) is plain: if documents are not organized and labeled to correspond to the categories in the request, they must be produced as they are kept in the usual ...