W.D.N.C. - Can't Produce Emails as PDFs


Last week a decision was issued, David A. Johnson & Alda v. Italian Shoemakers, 3:17-cv-00740-FDW-DSC, 2018 U.S. Dist. LEXIS 181325 (W.D.N.C. Oct. 22, 2018), reviewing a magistrate judge's order granting in part and denying in part the Defendant's Motion to Compel, and requiring the Plaintiff to produce documents as they were kept in the usual course of business. The Court noted that Federal Rule of Civil Procedure 34(b) requires that documents be produced in the manner in which they are kept in the regular course of business, or in reasonably usable form.

In this opinion the Court concluded that a producing party need not organize and label documents as they are kept in the regular course of business because a business would keep its documents, "in a way that maximizes their usefulness in the day-to-day operations of the business". Id. at *3 (quoting, T.N. Taube Corp. v. Marine Midland Mortgage Corp.,136 F.R.D. 449, 456 (W.D.N.C. 1991)). The producing party bears the burden of proving that the documents were produced in the manner in which they are kept in the usual course of business.

The producing party bears the burden on proving that its document was produced as maintained during the usual course of its business. "As to the second requirement, a party satisfies it obligations under Rule 34 when the party provides documents that are searchable and/or sortable by metadata fields." Ibid.

Despite the fact that the Plaintiffs contended that none of the documents they had to produce were withheld, censored, or redacted, the Court found fault with their production of email messages as PDF files, which is not how such messages are kept in the ordinary course of business, and their failure to label documents as responsive to specific document requests. The Court granted the Motion for Sanctions, and awarded expenses related to the Motion to Compel.


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