Paper Chase: Failure to Follow Rule 34

Paper Chase: Failure to Follow Rule 34

As Judge Paul S. Grewal stated in his order re: motion to compel in Venture Corporation LTD, et al., v. James P. Barrett, while many law professionals may not be familiar with the more obscure Federal Rules of Civil Procedure (ex: Stenographic Transcript as Evidence), they should know Rule 34 well. Such was not the case here.

Background: Barrett owns three patents on an air monitor and gas scrubber component. The Ventures claimed ownership and filed suit. The defendant countersued, claiming that the plaintiffs “welched on commitments.” Per the order:

“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.”

Result: 41,000 pages of files, placed on flash drive or sent by email, without a custodial index, table or information at all — just folders of the files. In response, Barrett took some depositions and followed up with interrogatories requesting document identification 30 days before the discovery cut-off date.

“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.”

Per Rule 34(b)(2)(E)(i), “if documents are not organized and labeled to correspond to the categories in the request, they must be produced as they are kept in their usual course of business.” Judge Grewal held that Ventures’ production did not meet this requirement. The documents and ESI also were not kept in a more hierarchical scheme.

To remedy the matter, the court ordered the Ventures to do the following:

“(1) either organize and label each document it has produced or it shall provide custodial and other organizational information along the lines outlined above and

(2) produce load files for its production containing searchable text and metadata.”

Judge Grewal denied Barrett’s request for fees and costs and admonished him instead.

“Barrett’s unwillingness to accept the disjunctive nature or subsection (i), insistence on organization and labeling and delay in bringing this motion only contributed to the unfortunate situation at hand.”







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