In Episode 133, our CEO and Founder, Kelly Twigger discusses the importance of understanding Rule 34’s requirements on manner and form of production and whether they allow a party to demand production via dropbox link instead of a flash drive when it seeks native format and all accompanying metadata in case Miller v. Legacy Bank, 2023 WL 7410627 (W.D. Okla. 2023).
Introduction
Welcome to this week’s Case of the Week series brought to you by eDiscovery Assistant in partnership with ACEDS. My name is Kelly Twigger. I am the CEO and founder at eDiscovery Assistant, your GPS for ediscovery knowledge and education. Thanks so much for joining me today.
Each week, as you know, on the Case of the Week, I choose a recent decision in ediscovery and talk to you about the practical implications of that matter. This week’s decision highlights the need to understand the differences between form and manner of production under Rule 34, and why planning in advance for both of those is crucial to the data that you’ll receive in your case.
A couple of announcements before we dive into our decision. First, huge congratulations to our team for winning the Innovating Knowledge Management Award at the LegalWeek Leaders in Tech Law Awards during LegalWeek. It’s an incredible amount of work to curate the case law resources and education that we provide at eDiscovery Assistant, and I’m grateful to our team for all of their efforts. Thanks to all of you for supporting the work that we do.
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Let’s dive into this week’s case.
This week’s decision comes to us from the case Miller v. Legacy Bank. This is a decision from November 8, 2023, written by United States District Judge Timothy DeGiusti. This is a very, very short decision, but important.
Facts and Analysis
We are before the Court on plaintiff’s motion to compel the defendant to produce documents in native format and/or through electronic means. This case is about the denial of a loan application submitted by a pro se plaintiff.
The plaintiff asserts that the defendant denied his loan application because he is African American and because the property on which the loan application was based is in a predominantly black neighborhood. After the defendant denied his loan application, the plaintiff sought and obtained an identical loan from a different bank.
The plaintiff is not alleging in this motion that the defendant is withholding documents or that there are any deficiencies in defendant’s document productions — only that the defendant should be required to produce native files to plaintiff via a Dropbox link versus a flash drive. The plaintiff argues that because his requests instructed defendant to produce documents “in native format or otherwise with metadata intact,” the defendant was required to produce documents via Dropbox. As we’ll see, that means that the plaintiff, who was pro se here, really conflated the form and manner of production under Rule 34.
The Court looked at the plaintiff’s argument and, citing to Rule 34(b)(2)(e)(ii), stated that absent a request specifying a form for producing electronically stored information, that section requires only that a party produce it in a form or forms in which it is ordinarily maintained, or in a reasonably usable form or forms. Also “a party need not produce the same electronically stored information in more than one form.”
The defendant initially produced 785 documents to the plaintiff via a Dropbox link that I believe, although it’s not articulated in the Court’s decision, were in searchable PDF format. The defendant then made a supplemental production via a flash drive which included the original 785 pages, along with approximately 3,000 more pages. Both of those on the flash drive were in the form of searchable PDF files.
The form of produced information is a separate issue from how the information is delivered or stored, and the Court finds that the defendant has complied with its obligations for both under Rule 34. The plaintiff next argues that the defendant was required to identify which documents were produced pursuant to which request for production. The Court then looks again to the language of Rule 34, which gives the responding party two options for the manner in which documents are produced. A party must produce documents as they are either maintained in the ordinary course of business or must organize and label them to respond to the categories in the request. That’s what we refer to as manner of production.
The defendant here argued that it produced responsive documents as they are kept in the usual course of business — as is common in litigation — and the Court found no reason to deviate from that practice in this case, and that the defendant had complied with its obligations under Rule 34 as to manner of production. So, having found that defendant’s production satisfied Rule 34 as to both form and manner, the Court denied the plaintiff’s motion.
Takeaways
So, takeaways, some of you are probably thinking, why did she choose this case today? Rule 34 is pretty clear. But the Judge’s interpretation of Rule 34 is not very clear as it is applied to these facts. It’s an important point for our purposes.
We spend a lot of time talking about complex, sophisticated litigation. But that’s not 97-98% of what’s available today. Smaller cases like this one — over an $80,000 loan application — can turn on whether or not electronic evidence is provided to a party in a form that allows them to reasonably get their hands around it. Here, the defendant provided approximately 3,000, almost 4,000, documents to a pro se plaintiff in searchable PDF format. That’s not very usable.
Let’s start by addressing the difference between form of production and manner of production and why that matters here.
Form of production is the actual file type of data that you will receive. Here, according to the plaintiff’s motion, they asked for native format and the defendant gave them searchable pdfs. Those are far from the same. I would argue that the Court here glossed over the fact that plaintiff requested them in native format — as it was permitted to do under Rule 34 — and that defendant ignored that and produced them in PDF format. The Court then found that that was a reasonable format, essentially completely ignoring what plaintiff requested and, actually, the language of Rule 34 that the Court specifically cited. The plaintiff properly objected here and brought this motion, as it should have. Absent some basis from defendant as to why it was produced in PDF format, the Court should have ordered that defendant had to reproduce the information. There’s very little information in the decision at all because it’s very short and we are talking about the documentation surrounding the denial of a loan.
But in a case alleging discrimination, where the metadata about a decision may be relevant to whether discrimination is in fact happening, the form is very important. And again, plaintiff requested the documents in native format as Rule 34 asks it to do. This is a big issue with form of production, and you have to go to the court with not only what you were asking for, but an affidavit as to why form matters and what you can get from it that you cannot get from searchable pdfs or whatever form you were given. You need to make a factual record. Maybe the plaintiff did here, maybe they didn’t (because it’s a pro se litigant) but it’s not discussed in the decision. So it’s hard to comment on.
Next is manner of production. Manner of production is two things. First, it’s the organization of the produced materials, whether it is as it appears in the ordinary course of business or by request. Second, it is the physical way in which files are provided to the requesting party.
Now, you know, if you watch Case of the Week with me regularly, that I don’t believe the ordinary course of business language in Rule 34 as organization works anymore with ESI. But that’s the language that we have and that’s how defendant says it produced the documents. There’s no additional information on what arguments that plaintiff may have made here related to the manner of production.
Normally, I would say that for such a small number of documents, it likely doesn’t make much difference. But when you produce them in searchable PDF with no metadata there’s no way to search or filter through the documents. You have to review every single document, and this is a pro se litigant. So what tools are available to that pro se litigant, or their ability to identify any tools to be able to use to review that information, is basically nonexistent. They’re not going to have the money to go and hire an ediscovery vendor or to have someone help them with several thousand documents. And let’s be honest, how many vendors are going to want to help you with such a small project?
The last issue here related to manner of production — producing via a Dropbox link versus a flash drive — is one that you’re really not likely to win unless you have a specific reason why the data from one location is not as good as from another. The overriding point to this particular case is that form and manner of production matter, and you need to pay attention to them, even in these small cases. So in small cases like this one over a loan, you don’t have unlimited resources. But a very short protocol that lays out form and manner of production and is signed off on by the court allows you the protections that you need. You should have it ready to go for all of your matters, and then you don’t have to bill separately for it each time. Just have a paralegal make the changes to get it in shape for this specific client.
We’re going to be adding a very drilled down ESI Protocol that pro se litigants can be able to use. So as that’s available — and it will be made publicly available — please share it on your networks so that litigants will be able to leverage those tools to be able to protect themselves in situations like this one here in Miller.
Conclusion
That’s our Case of the Week for this week. Thanks so much for joining. We’ll be off next week at the University of Florida eDiscovery Conference, so please get registered and tune in Wednesday morning for our 90 minute case law panel, on which I’ll be joined by former Magistrate Judge Mac McCoy, Maria Salacuse of the EEOC, and Bansri McCarthy of Morgan Lewis.
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Thanks so much. Have a great week. We’ll see you next week at UF.
