Anderson Living Trust v. WPX Energy Production, LLC
298 F.R.D. 514
D.N.M.2014Background
- Plaintiffs received ~20,000 pages produced as searchable PDFs (and native Excel files) and asked defendants to identify which produced documents corresponded to each numbered request.
- Defendants produced scanned PDFs and native spreadsheets after negotiating production format with Plaintiffs and provided an index; they refused to map Bates ranges to each request.
- The court initially inclined to require Bates-matching under Fed. R. Civ. P. 34(b)(2)(E)(i) but invited further briefing and a motion to reconsider focused on whether (E)(i) applies to ESI.
- Defendants moved to reconsider, arguing (E)(i) governs only hard-copy documents and (E)(ii) — form-of-production rules — governs ESI; they also asserted their production complied with the parties’ agreed format.
- Plaintiffs argued the bulk of the disputed material originally existed only in hard copy and thus should be treated under (E)(i) despite being produced as PDFs at Plaintiffs’ request.
- The Court concluded (E)(i) governs hard-copy documents, (E)(ii) governs ESI; because the parties stipulated to electronic production and the defendants produced in the agreed PDF/native formats, no further labeling or remapping was required and the motion to reconsider was granted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Rule 34(b)(2)(E)(i) (organize/label or produce as kept) apply to ESI? | (Plaintiffs) Some produced items were originally hard copy and should be governed by (E)(i). | (Defendants) (E)(i) applies only to hard-copy documents; ESI is governed by (E)(ii). | (Held) (E)(i) governs hard-copy documents; (E)(ii) governs ESI — they are distinct and do not overlap. |
| Are documents that were hard copy but scanned at the requesting party’s direction still governed by (E)(i)? | Scanned hard copies remain ‘‘documents’’ and should be treated under (E)(i) despite conversion. | Parties may stipulate form; Plaintiffs requested PDFs so (E)(ii) governs production. | (Held) Because parties agreed to electronic production, converted materials are governed by (E)(ii); Plaintiffs cannot retroactively demand (E)(i) protections. |
| Does producing ESI require organizing/labeling to correspond to each request (i.e., mapping Bates ranges to requests)? | Plaintiffs: mapping is necessary to manage and use a massive production. | Defendants: producing searchable ESI in agreed form is sufficient; mapping imposes undue burden and is unnecessary. | (Held) No labeling/mapping required when production is ESI under (E)(ii) and parties stipulated to electronic format. |
| Did Defendants’ production satisfy Rule 34? | Plaintiffs contend the production (esp. scanned bulk PDFs) was not produced "as kept" and thus insufficient without mapping. | Defendants produced searchable PDFs and native spreadsheets in the format requested and provided an index. | (Held) Defendants met their obligations by producing in the agreed electronic forms; no additional production or labeling required. |
Key Cases Cited
- Bills v. Kennecott Corp., 108 F.R.D. 459 (D. Utah 1985) (ESI is discoverable under Rule 34)
- Union Pacific R.R. Co. v. Larkin, 229 F.R.D. 240 (D.N.M. 2005) (court required specifying which produced documents responded to requests)
- Pass & Seymour, Inc. v. Hubbell Inc., 255 F.R.D. 331 (N.D.N.Y. 2008) (courts disfavor dumping massive unindexed productions)
- Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640 (D. Kan. 2005) (interpreting production in the usual course of business to include native-format ESI)
- SEC v. Collins & Aikman Corp., 256 F.R.D. 403 (S.D.N.Y. 2009) (ESI produced in non-routine context may not be in the "usual course of business" and could require labeling)