DECISION AND ORDER
Currently pending before the court in connection with this patent infringement suit is a discovery dispute which calls upon the court to determine whether, in response to seventy-two separate document discovery requests, the plaintiffs production in digital format of 405,367 pages of documents, apportioned among 202 unlabelled folders and which through application of litigation support software can be made text searchable,
While the governing rule entrusts the decision of which of the two specified methods of responding to a document demand will be selected, a litigant choosing to avoid production in a format under which the requested materials are organized to correspond to specific document demands must produce them as they are kept in the usual course of business. Since plaintiff has neither carried its burden of proving that the documents now at issue were produced in the manner in which they are maintained, nor has it otherwise produced the information necessary to make the production useful to the defendant, I will grant defendant’s motion, in part, and direct that plaintiff provide the defendant with further information regarding its document production.
I. BACKGROUND
Plaintiff Pass & Seymour, Inc. (“P & S”) commenced this action on September 12, 2007. Dkt. No. 1. Plaintiffs complaint alleges infringement by defendant Hubbell Incorporated (“Hubbell”) of fifteen patents held by P & S, based upon Hubbell’s manufacture and sale of allegedly infringing ground fault circuit interrupters. Id. Hubbell has since appeared in the action, generally denying the material allegations of plaintiffs complaint, asserting various affirmative defenses, and additionally counterclaiming seeking declarations of patent invalidity and noninfringement. Dkt. No. 6.
Following the joinder of issue, Hubbell served upon P & S both a comprehensive set of interrogatories and a document discovery demand, the latter of which sought the production of documents falling into seventy-two wide-ranging and broadly worded designated categories. After serving initial responses and objections to Hubbell’s document demands, P & S produced, in electronic format, the equivalent of 405,367 pages of documents — -a quantity estimated to be capable of filling in excess of 80 bankers boxes if produced in hard copy format. The documents produced, while loaded onto a computer hard drive for ease of conversion to text searcha-ble format, were only loosely organized, having been placed in 202 unlabelled files, with no corresponding index provided.
After voicing objections to the production, Hubbell took steps to engage P & S in a dialogue in an effort to reach a mutually acceptable compromise regarding the issue. With the failure of those efforts, Hubbell turned to the court for assistance.
II. DISCUSSION
The issue now before the court is governed in the first instance by Rule 34(b)(2) of the Federal Rules of Civil Procedure which provides, in relevant part, that unless otherwise stipulated or ordered a party responding to a demand by a federal court litigant for the production of documents “must produce [them] as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; ____” Fed.R.Civ.P. 34(b)(2)(E)(i); see Johnson v. Kraft Foods North America, Inc.,
The provision authorizing production in accordance with this second option was born out of the disfavor shown by courts to the dumping of massive quantities of documents, with no indexing or readily apparent organization, in response to a document request from an adversary, see In re: Sulfuric Acid Antitrust Litig.,
[cjlearly, the underlying assumption [in permitting the alternative of producing documents as they are maintained] 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.
CooperVision, Inc. v. Ciba Vision Corp., No. 2:06 CV 149,
Under the provisions of Rule 34(b)(2) a responding party clearly controls the manner in which production will occur, and specifically which of the two prescribed methods of production will be employed. MGP Ingredients, Inc. v. Mars, Inc., No. 06-2318,
P & S contends that it has properly exercised its option of producing the requested documents in the manner in which they are ordinarily kept, presumably meaning in the order in which they were stored and retrieved. In support of this assertion, P & S has offered only an attorney’s statement to the effect that the documents produced have been assembled as they have been maintained in the usual course of the company’s business, without further elaboration. Before Hubbell’s motion was filed, P & S had provided literally no additional information regarding its search for the documents, including where the documents produced were maintained, whether they came from a single source or file or from multiple points of origin, the identity of the record custodians, and the manner in which they were organized. Cf. Johnson,
To its credit, since the filing of the motion P & S has now identified, by Bates number ranges, the custodians of the respective records produced. No further information is provided, however, and many of the individuals identified are not known to Hub-bell. In the court’s view, even with the addition of this information P & S has fallen far short of satisfying its burden of demonstrating that the requirements of Rule 34(b)(2) have been met. See Google, Inc. v. American Blind & Wallpaper Factory, Inc., No. 03-CV-5340,
In addition to failing to fulfill its burden of proving that the documents produced were organized as they are regularly maintained, P & S has provided little detail regarding how it routinely organizes the documents, arguing that Rule 34(b)(2) imposes no corresponding duty to provide information that reveals how they are maintained in the usual course of business. While there may be some decisions which could be regarded as moderately supportive of this view, see, e.g., In re Lorazepam & Clorazepate Antitrust Litig.,
P & S protests that acceptance of Hub-bell’s argument in essence effectively eliminates the option of producing documents as they are ordinarily maintained despite the fact that this method is explicitly permitted by Rule 34(b). This not the case. I fundamentally agree that a party responding to a document discovery request may, at its option, make production of the documents as they are ordinarily maintained. The present controversy, while recognizing this alternative method, centers upon what is meant by the portion of the rule permitting production of documents “as they are ordinarily maintained.” As its plain language reflects, the rule contemplates that a party selecting this option disclose information to the requesting party regarding how the documents are organized in the party’s ordinary course of business.
The facts of this case provide ample illustration of why plaintiffs production does not comply with the requirement. As has previously been noted, the more than 400,000 documents produced by P & S were placed in 220 unlabelled files and produced in that format, initially without explanation. If P & S could sustain its burden of showing that in fact the documents produced are maintained in that same fashion — that is, contained within the same 220 unlabelled folders — either digitally or in hard copy, then it clearly would have met the requirement of production of the documents as they are ordinarily maintained in the course of its business. The court doubts, however, that this is the case, and P & S has not argued otherwise. P & S has therefore failed to fulfill its obligation to produce the documents as they are maintained in the ordinary course of its business. Cf. United States v. O’Keefe,
The most obvious means of complying with the requirement of Rule 34(b) to produce documents as they are kept in the usual course of business is to permit the requesting party to inspect the documents where they are maintained, and in the manner in which they are organized by the producing party.
The production by P & S of 405,367 pages of documents devoid of any index or table to help illuminate the organizational regime utilized by P & S falls short of meeting the obligations imposed under Rule 34(b)(2). While some measure of explanation regarding the documents produced is required, neither the rule itself nor the cases surveyed reveal any bright line guidance concerning the level of detail required when a producing party has opted to produce documents as they are ordinarily maintained. Many courts addressing this issue have adopted a flexible approach, finding that the producing party can comply with the spirit of the “usual course of business” requirement by insuring that the records are segmented in easily identifiable categories. See Estate of Townes Van Zandt v. Eggers, No. 05 Civ. 10661,
P & S defends its initial production, asserting that particularly in view of the potential text searchable feature of its production format it was under no obligation to disclose additional information regarding how the records being produced are stored, and were retrieved. The cases cited by P & S in defense of its position are in the most part inapposite. In Zakre v. Norddeutsche Lan-desbank Girozentrale, for example, the production of e-mails in electronic and text searchable format was approved by the court because they were produced “in as close a form as possible as they are kept in the usual course of business.” No. 03-Civ 0257,
Another case from which P & S draws considerable comfort is Morgan v. City of New York, No. 00-Civ.-9172,
P & S also relies heavily upon the decision in MGP Ingredients, Inc. v. Mars, Inc., No. 06-2318,
As the foregoing reflects, a party who in response to a discovery demand has chosen to produce documents as they are ordinarily maintained must do just that — produce the documents organized as they are maintained in the ordinary course of producing party’s business, with at least some modicum of information regarding how they are ordinarily kept in order to allow the requesting party to make meaningful use of the documents. At a minimum, that means that the disclosing party should provide information about each document which ideally would include, in some fashion, the identity of the custodian or person from whom the documents were obtained, an indication of whether they are retained in hard copy or digital format, assurance that the documents have been produced in the order in which they are maintained, and a general description of the filing system from which they were recovered.
Plaintiffs initial production, while capable of being converted into text searchable format, contained no organizational information regarding the documents produced. Admirably, since this dispute came to a head P & S has made strides to provide some information regarding the documents produced, identifying the sources of the documents produced by Bates number ranges. While this represents a step toward compliance with Rule 34(b)(2), it does not fully satisfy the rule. See Residential Constructors, LLC v. ACE Prop, and Cas. Ins. Co., No. 2:05-CV-01318,
III. SUMMARY AND CONCLUSION
The discovery demands served by Hubbell are undeniably both aggressive and broad in scope, seeking documents falling into seventy-two categories. In responding to those demands, P & S has properly opted not to format its responsive production by associating each of the 400,000 documents produced to those demands. While professing to having produced the documents as maintained in the ordinary course of business, however, P & S has offered little information regarding the manner in which they are internally organized and maintained.
The court appreciates the burden associated with attempting to organize and collate 405,367 pages of documents, and further recognizes with the advent and increased use of digitized information and litigation support software, large quantities of documents can be rendered both manageable and text searchable. Accordingly, it can be argued that less by way of organizational information should be required than historically may have been the case in order to permit informed use of documents produced by an opponent. After weighing these considerations, I conclude that it would be both unfair and unduly onerous to require P & S to organize the documents produced to correspond to the seventy-two document requests made by Hubbell, as defendant now requests. Nonetheless, finding that plaintiff has failed to carry its burden to show compliance with the requirements of Rule 34(b)(2), the court will order P & S to provide some additional information regarding the organization of those documents in the ordinary course of its business. Accordingly, it is hereby
ORDERED as follows:
1) Defendant’s motion to compel discovery (Dkt. No. 27) is GRANTED in part, and plaintiffs cross-motion for a protective order (Dkt. No. 29) is hereby DENIED.
2) Within thirty days of the date of this order plaintiff shall produce to defendant an index of the documents produced, revealing the custodian, location and a general description of the filing system under which each document was maintained in the ordinary course of plaintiffs business, further including an indication of whether the document is kept in digital format, hard copy, or both.
3) No costs or attorney’s fees are awarded to any party in connection with the pending cross-motions.
Notes
. In addition to raising the issue regarding plaintiff's document production, defendant has sought to elicit the court’s assistance to cure perceived deficiencies in certain of plaintiff's interrogatory responses. That issue was separately decided during a recent hearing held to address the pending discovery disputes.
. It should be noted that if the system utilized by the producing party to organize and maintain the documents is so deficient as to undermine the usefulness of production under this portion of the rule, the obligations imposed under Rule 34 may not have been met even where this procedure is followed. See Kozlowski v. Sears, Roebuck & Co.,