eDiscovery Daily Blog

Judge Sides with Both Parties in Form of Production Dispute – eDiscovery Case Law


The opinion in Kwasniewski v. Sanofi-Aventis U.S. LLC, No. 2:12-cv-00515-GMN-NJK (D. Nev. June 28, 2013) suggests that producing parties can satisfy their obligation to produce documents in an organized manner by offering a table of contents, rendering text searchable, indicating which data responds to which request, and including certain metadata, such as Bates numbers.

During discovery, defendant Sanofi-Aventis responded to the plaintiffs’ discovery requests by producing a large number of documents. The plaintiffs objected, arguing that the response was improper because Sanofi-Aventis failed to provide an index, to indicate which documents corresponded to which request, and to Bates stamp the documents. Sanofi-Aventis argued that it complied with the discovery rules and produced documents as they were “kept in the usual course of business.” Moreover, it had produced the documents in a text-searchable format and included an index. The court denied the plaintiffs’ motion and ordered the parties “to meet and confer in good faith by discussing the merits of each argument in an effort to resolve the dispute without further Court involvement.”

The parties could not resolve the dispute on their own. Subsequently, the plaintiffs re-filed their motion to compel, asking Sanofi-Aventis to organize and Bates number its production by request. Sanofi-Aventis again asserted that it had produced the information properly.

The court began its analysis by quoting the Federal Rule of Civil Procedure 34. To prevent parties from “‘obscuring the significance of documents by giving some structure to the production,’” Fed. R. Civ. P. 34(b)(2)(E)(i)requires parties to choose either to “produce documents as they are kept in the usual course of business” or to “organize and label them to correspond to the categories in the request . . .” The court noted that “[p]roducing parties should not raise ‘unnecessary obstacles for the requesting party’ in the production of ESI.” As a result, “the production of ESI must be rationally organized to enable the parties to determine if responsive documents have been produced.”

Sanofi-Aventis responded that its production was organized and searchable; instead, the problem is that the plaintiffs had “not made a reasonable effort to determine which documents are responsive to their requests.”

The court found that Sanofi-Aventis had complied with Rule 34 by providing a table of contents that described “the types of documents and the volume and page number where those documents are located” and noted that “each volume number is readily identifiable via cover sheet.” Furthermore, Sanofi-Aventis “provided metadata for all the documents, which allows the Plaintiffs to identify the documents by bates range, file path, and document title.” Finally, all but 33 of the produced documents were text-searchable. Accordingly, the court concluded, “if the Plaintiffs make a reasonable effort, they should be able to obtain the documents responsive to their requests.”

Even so, the court found that Sanofi-Aventis’s responses were “deficient in that they create unnecessary obstacles for the plaintiffs”: they “should not have to guess which requests were responded to and which were not.” Therefore, the court granted the motion to the extent the plaintiffs sought “to determine whether the documents produced by Sanofi-Aventis were actually responsive to the Plaintiffs’ discovery requests.”

So, what do you think?  Was that a proper form of production?   Please share any comments you might have or if you’d like to know more about a particular topic.

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Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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