The opinion of the court was delivered by: David E. Peebles U.S. Magistrate Judge
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 plaintiff's 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, but is otherwise neither organized to correlate to the document demands nor in any fashion indexed or labeled to reflect how they are maintained in the ordinary course of plaintiff's business, satisfies the responding party's obligations under Rule 34 of the Federal Rules of Civil Procedure. Contending that such a response is not consonant with either the letter or spirit of the governing rule, defendant seeks an order compelling the plaintiff to organize the documents produced and to disclose which are responsive to each of the seventy-two document demands. In response, plaintiff argues it has properly invoked its right to produce the documents as they are maintained, and is neither required to further organize the documents nor obligated to provide an index of the materials produced.
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.
Plaintiff Pass & Seymour, Inc. ("P&S") commenced this action on September 12, 2007. Dkt. No. 1. Plaintiff's 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 plaintiff's 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 searchable 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.*fn1
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., 236 F.R.D. 535, 540 (D. Kan. 2006). As can be seen, while the rule contemplates that a party may make the requested production in traditional format, organized to associate the documents with the party's requests to which they respond, at the responding party's option it alternatively permits the production of responding documents within the parties' possession, custody or control as they are customarily maintained, without providing further guidance regarding this alternative protocol. Cardenas v. Dorel Juvenile Group, Inc., 230 F.R.D. 611, 618 (D. Kan. 2005) (noting that the rule does not further explain the term "usual course of business").
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., 231 F.R.D. 351, 363 (N.D. Ill. 2005), to prevent parties from "deliberately . . . mix[ing] critical documents with others in the hope of obscuring significance." See Advisory Committee Note for 1980 Amendment to Rule 34 (quoting report of the Special Committee for the Study of Discovery Abuse, Section of Litigation of the American Bar Association) (1977)); see also Johnson, 236 F.R.D. at 540. Addressing the underlying rationale for the added option, one court has noted that [c]learly, 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, 2007 WL 2264848, at *4 (E.D. Tex. Aug. 6, 2007).
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, 2007 WL 3010343, at *3 (D. Kan. Oct. 15, 2007). A party selecting the alternative method of production bears the burden of demonstrating that the documents made available were in fact produced consistent with that mandate. Johnson, 236 F.R.D. at 540-41; Cardenas, 230 F.R.D. at 618. To carry this burden, a party must do more than merely represent to the court and the requesting party that the documents have been produced as they are maintained. See Johnson, 236 F.R.D. at 540-41 and Cardenas, 230 F.R.D. at 618 (both holding that the mere assertion that documents were produced as kept in the ordinary course of business is insufficient to fulfill requirements of the governing rule); see also GP Indus., LLC v. Bachmon, No. 8:06CV50, 2008 WL 1733606, at *3 (D. Neb. Apr. 10, 2008) (citing Cardenas).
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, 236 F.R.D. at 540-41 (concluding that without this information the responding party had failed to carry its burden under Cardenas).
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 Hubbell. 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, 2006 WL 5349265, at *3. (N.D. Cal. Feb. 8, 2006) (indicating that a party's ...