Information required to produce electronic data as kept in the usual course of business

January 30th, 2009 | By Steve Puiszis

Pass & Seymour, Inc. v. Hubbell, Inc., 2008 WL 4240490 (N.D.N.Y., September 12, 2008)

This is another case dealing with lawyers who are practicing the ancient art of steganography through steganographic discovery responses. Hubbell involved the production of 405,367 pages of documents in an electronic format that were “loosely organized” in 202 unlabeled files with no corresponding index. After the defendant objected to the production, plaintiff asserted that the electronic documents were produced as they were kept in the “usual course of business.”

Rule 34’s Mandate
Under Rule 34(b)(2)(E)(i), a party can produce documents either “as they are kept in the usual course of business or must organize and label them to correspond to the categories in [a] production request.” Hubbell addresses what information a producing party must provide to justify its production of electronic documents as they are kept in the usual course of business.

Demonstrating How Documents are Kept in the Usual Course of Business
The district court in Hubbell, noted that a party who chooses to produce electronic documents as they are kept in the usual course of business “bears the burden of demonstrating that the documents made available were, in fact, produced consistent with that mandate.” To meet that burden, a party must do more than merely represent to the court that the data has been produced as it is ordinarily maintained. Hubbell noted that an attorney’s statement to that effect falls woefully short of meeting a party’s burden.

The court rejected plaintiff’s argument that Rule 34(b)(2) imposes no duty to provide information that reveals how a party’s records are maintained in the usual course of business. Rather, the court found “the 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.” The district court in Hubbell recognized that with the “increased used of digitalized information and litigation support software, large quantities of documents can be rendered both manageable and text searchable” and, as a result, less organizational information may be required than what has historically been the case. However, the fact that the electronic data being produced may be text searchable does not mean that a producing party can dodge Rule 34’s organizational requirements.

The court also explained that “while some measure of explanation regarding the documents produced is required,” neither Rule 34(b)(2) itself nor the cases it surveyed “reveal any bright line guidance concerning the level of detail [that should be provided] when a producing party has opted to produce [electronic] documents as they are ordinarily maintained.”  It concluded that at least “some modicum of information regarding how [the electronic documents] are ordinarily kept” must be submitted in order to allow the party receiving the electronic documents to make meaningful use of them. Thus, the court ordered plaintiff to provide an index of the documents produced which reveals “the custodian, location and a general description of the filing system under which each document was maintained in the ordinary course of plaintiff’s business” and further, “an indication of whether the document is kept in digital format, hard copy or both.”

“Take Aways”
The Advisory Committee Notes to the 1980 Amendment to Rule 34 discussed steganography without calling it that when it recognized “parties deliberately mix critical documents with others in the hope of obscuring [their] significance.” Given the increased volume of electronic data now being produced, courts are actively attempting to discourage this practice and Hubbell reflects how one court addressed a steganographic discovery response. So spend a few minutes reading Hubbell. Also recognize that if the electronic data you are producing is not text searchable, more information, not less, may have to be provided with your production response than what the court in Hubbell required.

Whenever possible avoid de artificio sine secreti latentis suspicione scribendi which, unless you happen to be fluent in Italian or remember your high school Latin, is probably as meaningful or useful to you as the production of electronic data is to your opponent without the index of information that Hubbell requires. There are free translation services available on the web like BabelFish that may help you understand the meaning of the phrase included above. That is essentially what Hubbell requires whenever electronic data produced as it is maintained in the usual course of business.

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