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Beyond the usual course: Producing documents under the discovery rules

Vol.75, No. 3 / May - June 2019

Summary

There was a meme going around the internet for a while: What my mom thinks I do, what my friends think I do, and what I actually do. My mom and friends think I spend my days arguing before judges. If only.

by Ferne P. Wolf[1]

There was a meme going around the internet for a while: What my mom thinks I do, what my friends think I do, and what I actually do. My mom and friends think I spend my days arguing before judges. If only.

Producing Documents Under the Discovery Rules

What I do far too often involves reviewing documents. Whether responding to a motion for summary judgment or reviewing the record on appeal, what makes its way into produced documents at trial can significantly affect the outcome of a case. How a party produced those papers and bits of electronically-stored information can make the difference between finding the all-important smoking gun or searching forever through the heap of the document dump.

Is it acceptable for a party to produce documents in a “document dump?” No. It hasn’t been for years. Yet we still get documents in ways that seem to violate the letter, if not spirit, of the discovery rules. In the hope of highlighting the problem and working towards resolution, this article covers what a producing party should do when responding to a request for production. First, the Missouri Rule. Second, the analogous federal rule and caselaw. Third, similar rules from other jurisdictions.

Missouri Rule 58.01(c)(4)

Supreme Court of Missouri Rule 58.01(c)(4) gives the producer a choice when it comes to producing documents. It can produce documents as it keeps them in the usual course of its business. Or it can organize and label the documents to correspond to the categories in the request. “Method of Production. A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.”[2]

The second option, organizing and labeling, can be difficult and time-consuming. Sometimes requests overlap, and sometimes it can be unclear which document goes with which request. Parties often produce stacks of documents or large amounts of electronically stored information without saying what documents respond to which request.

For example, we have asked, “For the period 1/1/12 to the present, produce all complaints of sexual harassment.” In response we have received answers such as “See documents produced” or “Documents will be produced.” The documents might arrive in a stack with nothing telling us which the producer claims are the sexual harassment complaints. Or the documents might arrive as email attachments with labeling such as “DEF000001.pdf, DEF000002.pdf” and no other description.

Faced with the stack of documents, the requesting party can challenge the producer’s method of production in a motion to compel. But in some circuits, before filing the motion to compel, the requester must attempt to resolve discovery disputes.[3] Even when a local rule does not require efforts to resolve, the judge will often ask if the parties tried to work things out before coming to court. After waiting 30 days for a discovery response, the requester must now ask for more information. Sometimes this means waiting a couple of weeks for opposing counsel to get back after checking with their client. Finally, the follow-up email will typically be a statement from the producer attorney that it produced the documents as kept in the usual course of its business. Sometimes the attorney will give a sort of index to the documents in the body of the e-mail, such as:

DEF00001-55 — Plaintiff’s Personnel File

DEF00055-192 — Employee Handbook

There are two problems with this kind of response. First, the producer’s claim that it produced the documents as kept in the usual course can be suspect. Does the business really stack its documents in boxes, unstapled, with no file folders separating one type of document from another? Or does the business really store its electronic information by sequential Bates numbering, labeling those PDFs only by stamped numbers? Second, is the lawyer’s explanation sufficient under the rule?

The answer to those questions should be in Rule 58.01. On its face, Rule 58.01 appears to give the producer unfettered discretion to claim usual course production without further explanation. Does Missouri give a producer the option to dump documents and claim usual course production? If so, why would anyone organize and label? In challenging a document dump, an attorney would be expected to show the trial court some caselaw. But, as of this writing, there are no reported Missouri cases addressing limits to usual course production.[4] With no caselaw on point, Missouri courts and practitioners can look to caselaw under the identical federal rule, Federal Rule 34(b)(2)(E)(i).[5] When “Missouri and federal rules are essentially the same, federal precedents [are] persuasive, although not binding authority.”[6]

Federal Rule Drafters Anticipated Usual Course Production Would Reflect the Logic of the Business’s Use

History of Amendment to Rule 34, Allowing Usual Course ProductionRule 34 of the Federal Rules of Civil Procedure governs production of documents. In 1977, the ABA Special Committee on Discovery Abuse issued a report describing production-related abuses and proposed solutions. The proposals led to Rule 34’s 1980 amendment, the model for Missouri Rule 58.01(c)(4).

The committee described the “reprehensible practice” of parties attempting “to burden discovery with volume or disarray.”[7] Parties “deliberately mix[ed] critical documents with other in the hope of obscuring significance.”[8] The new Rule 34, which permitted usual course production and production by organizing and labeling, was supposed to eliminate such “chicanery.”[9]“

Most members determined that the convenient and least burdensome requirement would entail production in the order in which the documents are actually kept in the usual course of business so that there is an internal logic reflecting business use.”[10] Allowing access to documents as maintained in the usual course of a party’s business would prevent the producer from deliberately “shifting the materials from the sequence which they were ordinarily kept to somewhere else . . .”[11] In permitting usual course production, “the underlying assumption was that production of records as kept in the usual course of business ordinarily will make their significance pellucid. That is the overarching purpose of the rule.”[12]

If a party reshuffles documents before production, it is not producing documents as kept in the usual course of its business. When the producer – or more likely, the lawyer – reorganizes and then produces the documents, the producer hides the logic of business use. Production becomes the impermissible document dump the amended rule was supposed to eliminate.

Courts Look at the Purpose for Allowing Usual Course Production, Not Just Rule 34’s Language

The amended rule seemed to give producers the choice to produce in the usual course with no additional obligations, but producers abused the amended rule. Courts started limiting usual course production and requiring usual course producers to undertake additional obligations. Often, especially in the earlier cases – maybe because they were imposing conditions that did not appear in the rule – the courts discussed the purpose of the 1980 amendments. The theme of the early cases was that usual course production was not a free-for-all.

For example, in a discovery dispute about insurance coverage, the plaintiff produced 41 boxes of documents with no explanation. In rejecting the plaintiff’s claim that it complied with usual course production, the court found:

The purpose behind the 1980 Amendment that added the “usual course of business” language to Rule 34(b) was to allow the discovering party access to business records in the manner documents were normally maintained by the producing party to prevent deliberate “shifting of the materials from the sequence which they were ordinarily kept to somewhere else. . .” 8A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2213. . . . The Court does not endorse a method of document production that merely gives the requesting party access to a “document dump” with an instruction to the party to “go fish.”[13]

Similarly, in a price-fixing case, the court relied on the purpose of the 1980 amendments in rejecting defendants’ claim of usual course production. Plaintiffs opposed usual course production because they believed defendants’ unwillingness to segregate documents into requested categories was a ploy to hide key documents. The court agreed, finding that the purpose of the 1980 amendment was to forestall “such abuses as the deliberate mixing of ‘critical documents with others in the hope of obscuring significance.’”[14

Limits on Usual Course Production[15]

Courts are divided as to who can take advantage of usual course production. Some courts limit usual course production to businesses engaged in creating documents resulting from routine activity. Others reject that approach and rely on the plain language of the rule.

In a leading case on usual course production, Securities & Exchange Commission (SEC) v. Collins & Aikman Corp.,[16] the court found that the SEC’s business was not investigating. When the defendant asked the SEC to produce investigation documents, the SEC could not take advantage of usual course production. The court analogized Rule 34’s “usual course” language to language from Federal Rules of Evidence 803 (6), the hearsay exception for records of a regularly-conducted business activity. The court found that the usual course option was available in two instances: first, when the producer was a business; and second, when the records resulted from “regularly conducted activity.”[17] A producer could not use the usual course option where its activities were “not ‘routine and repetitive’ such as to require a well-organized record-keeping system” because “the records do not result from an ‘ordinary course of business.’”[18]

Not all courts agree with the Collins & Aikman approach. In the other line of cases, the courts focus on the plain language of Rule 34(d), finding that usual course production is not limited to some business activities.[19]

Some courts focus on how the producer keeps the documents in deciding if a producer can use usual course production. For example, a business that is producing stored documents might not be able to take advantage of usual course production because when a business sends documents to storage, it loses the incentive to keep its documents organized in a way that reflects business use. There is no more reason for allowing usual course production. Thus, a party producing stored documents can use usual course production only if it can prove that how it stores documents hasn’t changed from how it kept the documents when it was using them.[20] This line of authority applies to documents stored at a storage facility or documents stored at the attorney’s office, such as documents related to other litigation. Litigation documents are not documents kept in the usual course of a party’s business.[21]

The key is the business’s usual course. Thus, a business that does not keep its documents organized might be able to produce documents as kept in its usual, messy course of business. For example, while not a discovery case, the court in Tucker v. Housing Authority[22] touched on usual course production for a disorganized attorney who was the plaintiff in a lawsuit. In discovery, defendants asked Tucker to produce his law practice records. Post-trial, defendants argued that Tucker’s records were too messy to satisfy usual course production. Noting that Tucker was a solo practitioner who conceded he didn’t keep accurate books, the district court found no fault with Tucker’s failure to produce color-coded, tabbed records.[23] In another case, a court permitted usual course production of a 10-inch stack of documents. The court observed that it was “entirely possible that Plaintiff, an individual without the benefit of a sophisticated entity wide filing system, actually stores these documents in the manner served, and therefore, he did produce them as he ordinarily keeps them.”[24] In both cases, the courts seemed sympathetic to the unique circumstances of the parties. The lesson for practitioners is that if a party is willing to produce evidence that it doesn’t keep accurate books or that its records are a mess, it might get by with a sloppy usual course production.

The Producer Bears the Burden of Proof

When a requester challenges the producer’s usual course claim, the producer bears the burden of proof. The producer must show – with evidence – that it produced the documents as kept in the usual course of its business.[25] Typically, this evidence consists of affidavits from persons with knowledge of the business’s record-keeping.[26] An explanatory letter or email from an attorney – what we often receive when we say we can’t figure out what the other side produced – will not suffice. For example, in Cardenas v. Dorel Juvenile Group, Inc.,[27] even though the party identified categories of documents by Bates numbering, the explanation failed to satisfy Rule 34. “[Dorel] does not provide the court with any information, let alone evidentiary proof, to establish that the documents were produced as kept in the ordinary course of business.”[28] A usual course producer must prove how it “produced [the documents] did not change from how” it kept the documents in the usual course of business.[29]

Sometimes, even with an explanation, courts have their doubts. A particularly messy production could lead a court to reject a usual course claim.[30] Or a usual course producer who culls out[31] or alters documents[32] before producing documents might not be able to meet its burden of proof. And a producer cannot avoid providing usual course evidence by producing documents as part of a procedure other than a response to a request for production, such as part of mandatory disclosures.[33]

Courts reject usual course claims when the producer mixes documents it claims to have kept in the usual course of its business with other documents.[34] Gathering documents from several sources outside the company and then producing those documents with company documents is not a usual course production. For example, in one case, several copies of court decisions involving the lawyers in our office were mixed with the documents we requested. We strongly suspected that the defendant – a private business – did not keep copies of our cases in the middle of its personnel records.

For the requester, there can be an advantage to putting the producer to the test of providing usual course evidence. When a party claims – particularly in an affidavit – that it produced documents as kept in the usual course of its business, it will be hard-pressed to deny the documents’ authenticity in opposition to summary judgment or at trial.[35]

Production Issues for Usual Course Producers

Usual Course Producers Must Explain What They’ve Produced.

Producers often send documents as hard copies or email attachments with no explanation of what they’ve sent. Even though the rule says nothing about indexing, almost uniformly courts require usual course producers to accompany documents with information about what was produced.

“[T]he overwhelming weight of authority counsels that more in the way of organization is required in order to make the document production meaningful, and thus proper.”[36]

A producer fails to meet its usual course obligation when it produces a “mass of undifferentiated documents for the responding party to inspect.”[37] Indeed, a key consideration for courts when deciding usual course challenges involving many documents is “whether the filing system for the produced documents ‘is so disorganized that it is unreasonable for the party to whom the documents have been produced to make its own review.’”[38] The producer must organize documents in a way so that the requester can confirm that the documents respond to the requests.[39]

In one of the leading usual course cases addressing the nuts and bolts of production, Pass & Seymour, Inc. v. Hubbell, Inc., the court found usual course production requires “at least some modicum of information regarding how [the documents] are ordinarily kept in order to allow the requesting party to make meaningful use of the documents.”[40] That modicum of information includes

. . . the identity of the custodian or person from whom the documents were obtained, an indication of whether [the documents] are retained in hard copy or digital format, assurance that the documents [were] produced in the order in which they are maintained, and a general description of the filing system from which [the documents] were recovered.[41]

Access Production or Allowing Inspection.

A party can produce its documents as kept in the usual course by permitting access to business records, meaning an inspection.[42] Indeed, a court can require on-site access to business records. One court, frustrated by the producer’s usual course production, ordered the producer to permit an on-site inspection of documents and to separate “the wheat” (responsive documents) from “the chaff” (nonresponsive documents).[43]

A producer cannot abuse access production. In a case that predates the 1980 amendment, a court rejected a party’s offer to transport the requester’s attorney to Chicago, where the producer kept its records. The producer had offered the requester “do-it-yourself” access to hunt down responsive documents.[44] In another case, a defendant invited plaintiff’s counsel to defendant’s business for an inspection of all the documents, without designating which documents the requester would find. Plaintiff’s counsel was to mark which documents she wanted copied.

“[D]efendants’ counsel had complete access to plaintiffs’ counsel’s work product through his own inappropriate insistence that copies not be made of the documents and that the documents remain in his possession.”[45] The court found that the proper response would have been for the defendant to find and copy the documents and send the documents to the plaintiff.[46]

When I worked for the federal government – during a particularly cold Kansas winter – a company representative led my co-counsel and me to an unheated warehouse to review documents. After a phone call to the magistrate, the company had to bring us the documents at our hotel.

Producing Emails in the Usual Course.

Emails can cause production issues. First, emails are ubiquitous. It is hard to imagine a case in which emails aren’t a part of the discovery process.[47] Second, most people don’t print out their emails. Individual users store their emails on their own computers or accounts. Key witnesses might use personal email accounts for relevant communication.

Since 2006, the federal courts have had electronic discovery rules. But Missouri has not amended its rules to account for electronic-discovery issues. In researching federal caselaw for usual course production of e-mails and other forms of electronically stored information, attorneys should watch for the date of the case and the rule cited by the court.

However, even the amended federal rules could apply to discovery of emails in Missouri. The federal production rule is now divided into two parts: producing documents under Rule 34(b)(2)(E)(i) and producing electronically stored information under Rule 34(b)(2)(E)(ii). Subpart i is the old 34(b), the same as Missouri Rule 58.01(c)(4).

The change is to Subpart ii. Because emails are typically stored electronically, Subpart ii applies to their production. Under that rule, the requester can specify the form of production. A requester can ask the producer to produce emails in their native format.[48] The Missouri rule does not give the requester the option of specifying a form in which the producer should produce electronically stored information. But under Subpart ii, if the requester doesn’t specify the form of production, the producer can produce the emails in the form in which they are ordinarily maintained or in a reasonably usable form. These options sound like the options the producer has for producing documents. Unless a Rule 34(b)(2)(E)(ii) case involves a requester who specified the form of production, federal caselaw should still be persuasive authority.

Because emails can often be stored by several users, many courts hold that a party produces emails in the usual course if it sorts the emails “chronologically by custodian” and includes referenced attachments just after the email.[49] But producing emails – and any documents – as kept in the usual course of business means not converting the document to a different format where conversion alters the document itself.[50]

Consequences for Failing to Produce as Kept in Usual Course, Including Consequences for Failing to Provide Sufficient Information to Make Usual Course Production Meaningful

Rule 34 gives a producer two options: usual course or organize and label. If the producer fails in its usual course production and the issue is now before the court on a motion to compel, the producer could lose the usual course option. There might not be a second chance. Instead, the court could order the producer to organize and label the documents to correspond with the requests.[51] Thus, while the rule appears to give producers the choice to pick between the two options – one that on its face involves no conditions – the courts hold that usual course production is a privilege that can be lost.

Other Jurisdictions

At least one federal court has addressed usual course discovery in a local discovery handbook. The Middle District of Florida requires usual course producers to explain their general scheme of recordkeeping. “The objective is to acquaint the inspecting party generally with how and where the documents are maintained.”[52]

There are few state court decisions, likely because discovery cases come out of state trial courts that do not publish. But occasionally a case will make it to an appellate court. For example, the Georgia Court of Appeals affirmed a trial court’s award of sanctions on a usual course production dispute. Georgia’s rule appears to be the same as Missouri’s – that is, there is no special rule for electronic discovery. The producer provided documents electronically and provided some labeling that gave the requester a way to search. But the court found that the labeling wasn’t useful. At a hearing on a motion to compel, the court asked defense counsel how the plaintiff could find documents related to one of the defendant’s counterclaims. The defendant’s attorney explained how to search fields, not how to find the documents.[53]

The Illinois and Kansas rules are virtually the same as the federal and Missouri rules.[54] The Comments to the Illinois Rule echo the stated purpose of Rule 54, providing, “This revision requires the party producing documents and that party’s attorney to make a good-faith review of documents produced to ensure full compliance with the request, but not to burden the requesting party with nonresponsive documents.”[55] In 2014, Illinois adopted additional electronic discovery rules so the requester can designate form of production.[56]

Conclusion

A reported Missouri decision setting the contours of usual course production seems unlikely unless such a decision comes through appeal of a sanctions order[57] or a writ. Given the federal caselaw, a good argument can be made that it is an abuse of discretion to allow a producer to respond to a request for production with only “See documents produced.” But discovery writs are hard to come by. A more practical solution is needed.

When a producer claims it is using usual course production, the first step should be to ask the producer to explain voluntarily what it produced and provide evidence that it produced the documents as kept in the usual course of its business. If that doesn’t work, the next step is to ask the court to enforce Rule 58.01(c)(4). And if the court does not order the producer to meet its burden of proving that it produced the documents as kept in the usual course of its business and that it sufficiently explained what it produced, seeking a writ remains a possibility.

Document dumps can affect the outcome of a case. A needle hidden in a haystack might never be found. Practitioners must know their rights and obligations when producing and receiving documents. Regularly bringing the caselaw to the courts’ attention may help discourage the practice, because document dumps do not seem to be going away on their own.

Endnotes

Ferne Wolf

1 Ferne P. Wolf is a partner at SilversteinWolf, LLC, St. Louis. She focuses her practice on employment law. She wishes to thank two people whose research and editing were invaluable in the preparation of this article: Joshua M. Pierson, and Rebecca S. Craig, who researched while a student at Washburn University School of Law. Ms. Craig is now an assistant county attorney in Miami County, Kansas.

2 Rule 58.01(c)(4).

3 E.g., 21st Judicial Circuit Rule 33.5.

4 In Norber v. Marcotte, 134 S.W.3d 651, 660 (Mo. App. E.D. 2004), the court affirmed entry of default as a discovery sanction. The court referred to the producer’s inadequate discovery responses in finding prejudice to the requesting party. The trial court had found that the documents did not appear to be kept in the usual course of business. Nor were they organized or labeled to correspond to the request. “The trial court described the documents as ‘woefully incomplete and unhelpful in aiding [the plaintiff] to determine the relevant facts prior to trial or to allow [the plaintiff] to develop his case or to eliminate the possibility of surprise at trial.’”

5 Fed. R. Civ. P. 3434(b)(2)(E)(i) reads: “A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.” The Federal Rules were amended in 2006 to provide procedures for discovering electronically-stored information (ESI). At that point, Rule 34’s subparts were renumbered. A search for relevant federal caselaw should include “Rule 34(b),” the old number for the usual course rule. Missouri has no corollary to Rule 34’s 2006 amendments addressing the unique issues associated with ESI, such as production of metadata and producing documents in their native format. However, there are some pre-amendment federal cases addressing ESI. For example, in 2005, a federal court held that a party which scrubbed metadata from a spreadsheet did not produce documents as kept in the usual course of business. See Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 652 (D. Kans. 2005).

6 Joel Bianco Kawasaki Plus, Inc. v. Meramec Valley Bank, 81 S.W.3d 528, 533 (Mo. banc 2002) (holding that where “Missouri and federal rules are essentially same, federal precedents [are] persuasive, . . . not binding authority”).

7 Report of the Special Committee for the Study of Discovery Abuse, Section of Litigation, American Bar Association (Oct. 1977), see https://www.leagle.com/decision/infdco20140605c73.

8 Id.

9 Id.

10 Id. See https://archive.org/stream/gov.uscourts.dcd.117804/gov.uscourts.dcd.117804.54.0_djvu.txt.

11 Devon Mobile Commc’ns. Liquidating Tr. v. Adelphia Commc’ns Corp. (In re Adelphia Commc’ns Corp.), 338 B.R. 546, 551 (Bankr. S.D. N.Y. 2005), quoting 8A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2213.

12 CooperVision, Inc. v. CIBA Vision Corp., No. 2:06CV149, 2007 WL 2264848, at *4 (E.D. Tex. Aug. 6, 2007).

13 Residential Constructors, LLC v. Ace Prop. & Cas. Ins. Co., No. 2:05-CV-01318, 2006 WL 1582122, at *2 (D. Nev. June 5, 2006) (internal quotations and citations omitted).

14 Board of Ed. v. Admiral Heating & Ventilating, Inc., 104 F.R.D. 23, 36 (N.D. Ill. 1984), citing Fed. R. Civ. P. 34, Advisory Committee Note (1980 Amendment, Subdivision (b)).

15 The scope of this article is responses to requests for production under Rule 58. But producers sometimes confuse Rule 58’s option to produce documents as kept in the usual course of business with Rule 57’s option to produce business records as part of an interrogatory answer. Adding to the confusion is the fact that requesters often send interrogatories and requests for production at the same time. The producer/answerer might respond “see documents produced” to both an interrogatory and request for production and then produce unsorted, unlabeled documents. A party answering an interrogatory with business records must meet the conditions stated in Rule 57. One condition is that the answering party must “specify the records from which the answer may be derived or ascertained.”

16 256 F.R.D. 403 (S.D. N.Y. 2009).

17 Id. at 412.

18 Id. at 412-13. See also, Kleppinger v. Texas Dep’t of Transp., No. 5:10-cv-124, 2013 WL 12138545, at *6 (S.D. Tex. Jan. 3, 2013) (finding that “[p]laintiff is not an entity that obtains records in the [usual] course of business” and “his gathering of documents” was not part of a regularly-conducted activity); Fed. Deposit Ins. Corp. v. Appleton, CV 11-476-JAK (PLAx), 2012 WL 10245383, at *3 (C.D. Calif. November 29, 2012) (holding that usual course production is not permitted where there is no “internal logic” to database).

19 See, e.g., Menard v. Chrysler Grp., L.L.C., No. 14 CV (VB), 2015 WL 5472724, at *2 (S.D.N.Y. July 2, 2015). Even though the producers in some of these cases are government agencies, they are considered businesses for Rule 34 purposes. United States v. Talmage, No. 1:16-cv-19, 2017 WL 2483797, at *4 (D. Utah June 8, 2017).

20 Fifth Third Bank v. KC II Insure Servs., L.L.C., No. 11-CV-2101, 2011 WL 5920949, at *5 (D. Kan. Nov. 28, 2011); In re Sulfuric Acid Antitrust Litigation, 231 F.R.D. 351, 363 (N.D. Ill. 2005); Hagemeyer N.Am., Inc. v. Gateway Data Scis. Corp., 222 F.R.D. 594, 598 (E.D. Wisc. 2004) (allowing usual course production where bankruptcy trustee placed documents in storage and there was evidence no one moved the documents).

21 Mizner Grand Condominium Ass’n, Inc. v. Travelers Prop. Cas. Co. of Am., 270 F.R.D. 698, 701 (S.D. Fla. 2010); Google, Inc. v. Am. Blind & Wallpaper Factory, Inc., No. 03-cv-5340, 2006 WL 5349265, at *4 (N.D. Calif. Feb. 8, 2006) (finding that Google’s production of color-coded, alphabetized pages did not satisfy requirements of usual course production where Google did not prove it produced documents from other case as maintained in usual course).

22 507 F. Supp.2d 1240 (N.D. Ala. 2006).

23 Id. at 1279.

24 Beckwith v. Robert Bosch Fuel Sys. Corp., No. 1:04-CV-791, 2005 WL 2571850, at *2 (W.D. Mich. Oct. 12, 2005).

25 Johnson v. Kraft Foods N. Am., Inc., 236 F.R.D. 535, 540-41 (D. Kan. 2006) (holding that unsupported representation to the court cannot satisfy burden of proving documents were kept in manner produced); DE Techs., Inc. v. Dell, Inc., 238 F.R.D. 561, 566 (W.D. Va. 2006); Pass & Seymour, Inc. v. Hubbell, Inc., 255 F.R.D. 331, 334 (N.D. N.Y. 2008).

26 Affidavits from a producer’s officer and counsel explaining how the producer gathered the documents, converted to PDF format and grouped were enough to satisfy the burden of proof. Guild Assocs. v. Bio-Energy (Wash.) L.L.C., No. 2:13-cv-1041, 2014 WL 2767605, at *11 (S.D. Ohio June 18, 2014). See, e.g., Muhl v. Tiber Holding Corp., No. CIV.A. 95-5284, 1997 WL 13680 (E.D. Pa. Jan. 9, 1997) (requiring records custodian and attorney to certify under penalty of perjury that the documents were produced as kept in usual course).

27 230 F.R.D. 611 (D. Kans. 2005).

28 Id. at 618.

29 Excel Enters., L.L.C. v. Winona PVD Coatings, L.L.C., No. 3:16-cv-19, 2017 WL 655861, at *3 (N.D. Ind. Feb. 17, 2017) citing In re Sulfuric Acid Antitrust Litig., 231 F.R.D. at 363.

30 In T.N. Taube Corp. v. Marine Midland Mortg. Corp., 136 F.R.D. 449, 456 (W.D. N.C. 1991), the court observed that it was “improbable that Marine Midland routinely haphazardly stores documents in a cardboard box.” See also, Coopervision, Inc., supra note 12, at *13.

31 Wagner v. Dryvit Sys., Inc., 208 F.R.D. 606, 611 (D. Neb. 2001).

32 Hagenbuch v. 3B6 Sistemi Elettronici Industriali S.R.L., No. 04 C 3109, 2006 WL 665005, at *2 (N.D. Ill. March 8, 2006) (holding that a party could not claim usual course production where it converted electronic characteristics of documents).

33 Frontier-Kemper Constructors, Inc. v. Elk Run Coal Co., 246 F.R.D. 522, 528 (S.D. W. Va. 2007). In Cardenas, 230 F.R.D. at 617, the defendant originally produced many documents with its Rule 26 disclosures and then, in response to a request for production, stated responsive documents “have been produced.”

34 Synventive Molding Solutions, Inc. v. Husky Injection Molding Sys., Inc., 262 F.R.D. 365 (D. Vt. 2009).

35 Musket Corp. v. Suncor Energy (U.S.A.) Mktg., Inc., No. H-15-100, 2016 WL 6704163, at *6 (S.D. Tex. Nov. 15, 2016).

36 Pass & Seymour, 255 F.R.D. at 335 (reviewing several holdings). In Pass, the court reviewed several decisions from the District Court of Kansas because the producer relied on one decision, MGP Ingredients, Inc. v. Mars, Inc., No. 06-2318, 2007 WL 3010343 (D. Kan. Oct. 15, 2007), in which Judge Waxse said a usual course producer did not have to index documents. The Pass court distinguished MGP from the earlier Judge Waxse decisions and noted the level to which the producer in MGP provided explanatory information. But see, Fifth Third Bank, supra note 20 (citing Cardenas).

37 Armor Screen Corp. v. Storm Catcher, Inc., No. 07-81091-Civ, 2009 WL 291160, at *2 (S.D. Fla. Feb. 5, 2009). See also, Menard, supra note 19 (finding usual course production compliant where producer provided index, accompanied by explanatory affidavit showing how it organized the documents).

38 Ak-Chin Indian Cmty. v. United States, 85 Fed. Cl. 397, 401 (Fed. Cl. 2009) (internal citations omitted).

39 Am. Gen. Life Ins. Co. v. Vistana Condo. Owners Ass’n., No. 2:12-cv-01324, 2014 U.S. Dist. LEXIS 67571, *9. (D. Nev. May 16, 2014). Even when producing documents as kept in the usual course, the producer “must indicate whether the documents it produced are actually responsive.” Id. at *13.

40 255 F.R.D. 331, 337 (N.D. N.Y. 2008).

41 Id. See also, Mizner, 270 F.R.D. at 701 (noting “Courts typically require the producing party to provide ‘some modicum of information’ regarding how documents are kept[,]” including custodian and description of filing system.).

42 Sky Med. Supply, Inc. v. SCS Support Claim Servs., Inc., CV 12-6383, 2016 WL 4703656, at *4 (E.D. N.Y. Sept. 7, 2016); Pass, 255 F.R.D. at 336.

43 Hoenig Devs., Inc. v. Dial Indus., 13-15138, 2015 U.S. Dist. LEXIS 107562, *3 (E.D. Mich. Aug. 14, 2015).

44 Kozlowski v. Sears, Roebuck & Co., 73 F.R.D. 73, 76 (D. Mass. 1976).

45 Starling v. Fuller, A-89-CA-153, 1992 U.S.Dist.LEXIS 20925, *35 (W.D. Tex. 1992).

46 Id.

47 According to statistica.com, 269 billion emails were sent and received each day in 2017.

48 “Native format,” in its simplest terms means the format in which the document was generated or used by the producing party in the ordinary course of its business. A PDX Pro Co. v. Dish Network Serv., LLC, 311 F.R.D. 642, n. 9 (D. Colo. 2015). A more technical definition is “the ‘file structure defined by the original creating application,’ such as a document created and opened in a word processing application.” Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158, n.2 (3d Cir. 2012) quoting The Sedona Conference, The Sedona Conference Glossary: E-Discovery & Digital Information Management 35 (Sherry B. Harris et al. eds., 3rd ed. 2010).

49 Fed. Deposit Ins. Corp. v. Giannoulis, No. 12 C 1665, 2013 WL 5762397, at *3 (N.D. Ill. Oct. 23, 2013); Abu Dhabi Commer. Bank v. Morgan Stanley & Co., 08 Civ. 7508, 2011 U.S. Dist. LEXIS 95912, at *19 (S.D. N.Y. Aug. 18, 2011) (noting that caselaw shows attachments must be produced with emails but have sometimes been treated separately for purposes of assessing applicable privilege and also addressing doctrine of completeness); Valeo Elec. Sys., Inc. v. Cleveland Die & Mfg. Co., No.08-cv-12486, 2009 WL 1803216,at *2 (E.D. Mich. June 17, 2009); MGP Ingredients, Inc. v. Mars, Inc., No. 06-2318, 2007 WL 3010343, at *2 (D. Kan. Oct 15, 2007).

50 See, e.g., Valle Del Sol v. Whiting, No. CV-10-01061-PHS-SRB, 2014 WL 12519787, (D. Ariz. Sept. 9, 2014). This was a dispute about emails under the federal ESI rule. The party responding to the subpoena — an Arizona state senator — stripped the emails of metadata, converting them to PDFs before producing them. The plaintiffs complained, arguing they were entitled to metadata. While plaintiffs had not specified in their subpoena duces tecum that they wanted documents in “native form,” they defined documents to include metadata. The court stated that it was “unaware of a method to preserve metadata unless an electronic document is produced in a native format” and ordered production.

51 Century Jets Aviation LLC v. Alchemist Jet Air, LLC, No. 08 Civ. 9892 (GBD)(KNF), 2011 WL 724734, at *3 (S.D. N.Y. Feb. 8, 2011); Cardenas v. Dorel Juvenile Group, Inc., 230 F.R.D. 611, 618 (D. Kans. 2005).

52 Nationwide Mut. Fire Ins. Co. v. Kelt, Inc., No. 6:14-cv-749, 2015 WL 1470971, at *11 (M.D. Fla. March 31, 2015), referring to the Middle District Discovery handbook 13 (2001). The current version of the handbook includes detailed provisions for handling the usual course option, https://www.flmd.uscourts.gov/sites/flmd/files/documents/florida-middle-district-courts-civil-discovery-handbook.pdf.

53 Hull v. WTI, Inc., 744 S.E.2d 825 (Ga. Ct. App. 2013).

54 See Ill. S. Ct. R. 214(c); KS R. Civ. P. 60-234.

55 Ill. Sup. Ct. R. 204(c) Cmt. (revised June 1, 1995), http://www.illinoiscourts.gov/supremecourt/Rules/Art_II/ArtII.htm#214.

56 The leading Illinois case on electronic discovery does not address the producer’s burden. Instead, the case addresses the limits of e-discovery, specifically addressing a request for a mirror image of a party’s computer. Carlson v. Jerousek, 68 N.E.3d 520 (Ill. App. Ct. 2016).

57 See Hull v. WTI, Inc., 744 S.E.2d 825 (Ga. Ct. App. 2013); Norber v. Marcotte, 134 S.W.3d 651 (Mo. App. E.D. 2004).