Case Law

Court Finds That “Form Over Substance” Does Not Satisfy Motion to Compel Production of ESI


Excel Enters. v. Winona PVD Coatings, 2017 U.S. Dist. LEXIS 22932 (N.D. Ind. Feb. 17, 2017) In this breach of contract case, the defendant moved the court to reconsider its previous order to compel the defendant to reproduce 30,000 electronic documents. The plaintiff previously asserted that the defendant was not in compliance with Rule 34(b)(2)(E)(1) of the Federal Rules of Civil Procedure, which requires the defendant to produce documents or ESI “as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.” The defendant argued that it previously converted all its documents to the plaintiff’s requested format, that the defendant’s director of information technology swore by affidavit that the documents were produced as they were kept in the ordinary course of business, and that each document contained “key identifying information for each document.” The defendant asserted that its actions satisfied the rule in that the documents’ present format did not prejudice the plaintiff. The court found that the defendant remained out of compliance with the latter part of Rule 34(b)(2)(E)(1); however, the court was persuaded that the current format of the defendant’s production did not prejudice the plaintiff. Citing Rule 26(b)(1), the court questioned whether the plaintiff’s request was “proportional to the needs of the case”, and stated that it “reads more like a motion for sanctions for [the defendant’s] original, unsearchable production rather than a reasonable request for organization and labeling of the supplemental production.” The court held that the burden to the defendant outweighed the benefit to the plaintiff, and granted the defendant’s Motion to Reconsider.

Keywords: Motion to compel, production format, ordinary course of business, burden, benefit, proportionality