OPINION
Before the court are Plaintiffs Motion to Compel and Memorandum in Support (plaintiffs Motion or Pl.’s Mot.), Defendant’s Response in Opposition to Plaintiffs Motion to Compel Records from the American Indian Records Repository (defendant’s Response or Def.’s Resp.), and Plaintiffs Reply in Support of Motion to Compel (plaintiffs Reply or Pl.’s Reply).
I. Background
A. Procedural History
Following the parties’ extensive briefing on plaintiffs Motion, the court issued an order GRANTING plaintiffs Motion. Order of Dee. 5, 2008, dkt. no. 81. The court held a telephonic status conference (TSC) with the parties on December 4, 2008 during which the court discussed its reasons for granting plaintiffs Motion, and stated its intention to supplement its December 5, 2008 Order with this opinion in order more thoroughly to discuss the most salient reasons for granting plaintiffs Motion. Transcript of TSC, Dec. 4, 2008(Tr.), 5:18-19. Further to the TSC, this opinion supplements the court’s December 5, 2008 Order granting plaintiffs Motion.
B. Factual History
The American Indian Records Repositoiy (AIRR) is “a [fjederal [r]ecords [c]enter---built ... to preserve and protect Indian trust records and to accommodate research of those records.” Def.’s Resp. 2. The AIRR is located in Lenexa, Kansas. Id. The boxes of documents stored at the AIRR are “indexed using the Box Index Search System (‘BISS’),” an “off-the-shelf commercial software package,” that captures “information about the source, files, and documents in [each] box [which information is subsequently] entered into the BISS database.” Def.’s Resp. 4. Researchers at the AIRR run queries in the BISS database to search for documents stored at the AIRR. Id.
On May 30, 2008 plaintiff “served two sets of production requests for document production ... and its first set of interrogatories on Defendant.” Pl.’s Mot. 3. The government served its responses on August 29, 2008. Id. Defendant responded to plaintiffs discovery requests by “making documents available for inspection at the AIRR.” Def.’s Resp. 1. Specifically, defendant responded to plaintiffs requests for production, stating, in part, “Defendant will make potentially responsive, non-privileged documents available to Plaintiff for inspection at the AIRR.” See, e.g., Pl.’s Mot. Exhibit (Ex.) C (Defendant’s Responses to Plaintiff Ak-Chin Indian Community’s First Request for Production of
II. Discussion
Defendant responded to plaintiffs document production requests and interrogatories by “making documents available for inspection at the AIRR.” Def.’s Resp. 1. For the following reasons, defendant’s reliance on RCFC 34(b)(2)(E)(i)
A. Documents at the AIRR Are Not Maintained in the Ordinary Course of Business Pursuant to RCFC 34
RCFC 34 requires that “[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.” RCFC 34(b)(2)(E)(i). Under RCFC 34, the producing party has the option of electing one of the two options for production authorized by the Rule. See, e.g., In re Adelphia Comm. Corp. (In re Adelphia),
Before being shipped to the AIRR, plaintiff’s records were maintained at the Pima Agency Office in Sacaton, Arizona, the Western Regional Office in Phoenix, Arizona, and the Land Title and Records Office in Albuquerque, New Mexico. PL’s Mot. 6. In 2007, the Office of Trust Records (OTR) moved plaintiff’s records from the Pima Agency Office in Sacaton, Arizona, to the AIRR in Lenexa, Kansas. PL’s Mot. Ex. F (Oct. 16, 2008 Abeita Declaration) II18.
In preparation for their transport to the AIRR, plaintiff’s documents were substantially rearranged and co-mingled with the documents of at least one other Tribe. See PL’s Mot. 6-8. According to the Director of the OTR, defendant’s procedures for transporting files include placing the transported files chronologically by year, separating trust records from non-trust records, and arranging the files by case number or alphabetically by name. Pl.’s Mot. Ex. F (Oct. 16, 2008 Abeita Declaration) Attachment C (Indian Affairs Records Management Manual) 7-8. In addition, file folders are organized by record series, a designation which “organize^] records by program and subject matter.” PL’s Mot. Ex. K (May 8, 2008 Abeita Declaration) II6. Representatives of the OTR re-order the files in local agency offices by record series “so records within the same record series are kept together when shipped to the AIRR.” Def.’s Resp. 10. The Director
Significantly, defendant’s procedures for preparing documents for storage at the AIRR do not require that files from each agency office be separated and stored by Tribe. PL’s Reply 6; see also Def.’s Resp. Attachment 1 (Nov. 14, 2008 Abeita Declaration) Ex. D (Indian Affairs Records Management Manual) passim. Therefore, “[plaintiffs] records maintained at the Pima Agency — along with those of the Gila River Indian Community as well — may well have ended up being shipped to [the AIRR] in the same boxes.” PL’s Reply 6. As a result of the significant reorganization of the files undertaken in preparation for transporting the files from the agency office to the AIRR, the documents are “irrevocably shuffled around and placed in a different order than they had been kept while being actively used by agency personnel.” PL’s Mot. 7.
Once the documents are disassembled from their filing system at the agency office and reorganized to comport with the filing system at the AIRR, they are no longer kept “in the usual course of business,” RCFC 34(b)(2)(E)®. “[S]tored documents are not kept in the usual course of business within the meaning of [Rule 34(b) ].” In re Sulfuric Acid Antitrust Litig. (In re Sulfuric Acid),
Nevertheless, there are some circumstances in which production of documents as they are kept in storage is proper under RCFC 34(b). In order to be proper, “the discovered party must ... show that the way in which the documents are kept [in storage] has not changed from how they were kept in the usual course of business.” Id. These circumstances do not exist in this case. As discussed above, the testimony of people familiar with the organization of documents as they were originally kept and how the documents are organized in storage, demonstrates that the documents undergo significant reorganization in preparation for their storage at the AIRR. See id. (discussing that testimony of persons familiar with the manner in which documents are filed and stored is sufficient to evaluate whether the producing party has met the evidentiary burden of proving that production of documents as they are kept in storage is proper under Rule 34(b)). Therefore, here, as in In re Sulfuric Acid, defendants have not made the requisite showing of consistency between the manner in which documents are maintained at the agency office and the filing system at the AIRR, a showing which is necessary in order properly to invoke the option of granting the discovering party access to documents under the first clause of RCFC 34(b)(2)(E)®. See id.
In its response, defendant relies on In re Adelphia which states that “in order to satisfy the requirements of Rule 34(b), any archived documents produced must be thoroughly indexed, the boxes accurately labeled and the depository kept in good order.” In re Adelphia,
The com't disagrees.
The facts in this case are easily distinguished from the facts in In re Adelphia itself where the boxes of documents were “thoroughly indexed” and “organized by department and labeled as to content.” In re Adelphia,
In addition, a significant factor in the court’s analysis in In re Adelphia was that the producing party in that case organized its documents for storage in accordance with “official directives and document retention protocols.” In re Adelphia,
Pursuant to the MOU, NARA has the responsibility to:
Preserve the integrity of the Tribal Records by maintaining separate collections for each Tribe within the AIRR records collection. This includes storing the Tribal Records by Tribe with an identifier Tribe that distinguishes the Tribal Records from one another____This also includes storing the Tribal Records by Tribe in a separate physical location that, at a minimum, is cordoned off from any other record holdings and clearly marked as the records of that Tribe.
Def.’s Resp. Attachment 1 (Nov. 14, 2008 Abeita Declaration), Ex. A (MOU between Interior and NARA) Art. Ill, § A.3. The court agrees with plaintiff that the procedures that have been implemented to store the records at the AIRR, and the corresponding BISS index, fail to comply with the MOU. See Pl.’s Reply 10. For example, the Tribal Code, a three-digit numeric code assigned by Interior to each tribe, is not a required field in the BISS. Pl.’s Mot. Ex. G (BISS Box Selection Refinement Procedures) 2. Similarly, the numeric code assigned to each agency office is also not a required field in the BISS. Id. “Therefore, ... it frequently is not possible to tell which tribe or agency relates to the files.” Pl.’s Mot. 9. Had the parties to the MOU, Interior and NARA, complied with the MOU, “the BISS would have captured [the information identifying records by Tribe] for [plaintiff] ... [to] be able to locate boxes containing its trust records at the AIRR.” Pl.’s Reply 10. The court agrees with plaintiff that this system “stands in stark contrast to how documents are generally held in the ordinary course of business, when the tribe and agency are easily diseernable.” See Pl.’s Mot. 9. Perhaps most importantly, defendant’s deviation from the procedures delineated in the MOU is easily distinguishable from the conduct of the producing party in the case upon which defendant heavily relies, where the producing party in that case complied with official directives. See In re Adelphia,
Once plaintiffs documents have been prepared for transfer to the AIRR, they are no longer kept in the usual course of business required by RCFC 34(b)(2)(E)(i). See In re Sulfuric Acid,
B. Defendant Does Not Properly Invoke RCFC 33(d)
In lieu of providing a direct answer to an interrogatory, RCFC 33(d) gives the responding party the option to produce business records “if the burden of deriving or ascertaining the answer [from the business records produced] will be substantially the
Defendant has not shown that “the burden of deriving or ascertaining the answer [from the business records produced] will be substantially the same for either party.” RCFC 33(d). First, and perhaps most importantly in this case, it is inherently impossible for plaintiff to undergo discovery at the AIRR without defendant having first reviewed the potentially responsive documents for privilege or confidentiality. The court in In re Sulfmic Acid found that the burden on the producing party to review the documents produced was “not as great [as the burden on the requesting party], since the [producing party was] more familiar with the documents than the [requesting party].” In re Sulfuric Acid,
In addition, defendant is not only more familiar with the docmnents that it stores at the AIRR, defendant is also much more familiar with the tools used to identify potentially responsive documents. Defendant itself created the BISS database. Def.’s Resp. Attachment 3 (Nov. 7, 2008 Dunne Declaration) 115. Defendant employs research staff at the AIRR who have a working knowledge of the software associated with the BISS. Def.’s Resp. Attachment 4 (Nov. 14, 2008 Ramirez Declaration) 11111, 4. Defendant also contracts with a public accounting firm which routinely performs searches for documents stored at the AIRR. Def.’s Resp. Attachment 3 (Nov. 7, 2008 Dunne Declaration) 11112-3.
Even if defendant had made the threshold showing that the burden of deriving answers to plaintiffs interrogatories would be substantially the same for either party, defendant does not meet the specificity requirement of RCFC 33(d)(1). “Federal courts have strictly construed [RCFC 33(d)(1)] to require a responding party to specifically direct the requesting party to the documents which contain the answer to the interrogatory.” AAB Joint Venture v. United States (AAB Joint Venture),
Therefore, in this case, where defendant has not identified documents but has simply provided an even broader reference to a list
III. Conclusion
Further to the court’s December 5, 2008 Order GRANTING plaintiffs Motion, and for the additional reasons specified in this Opinion, defendant shall COMPLY with the court’s December 5, 2008 Order.
IT IS SO ORDERED.
Notes
. The parties’ briefing referred to Rule 34(b) of the Rules of the United States Court of Federal Claims (RCFC). The court notes that the language that previously appeared in RCFC 34(b) now appears in the text of RCFC 34(b)(2)(E)(i).
. In re Adelphia Comm. Corp.,