Case Law

For Productions “Reasonably Usable Form” (and Not “Form Ordinarily Maintained”) Is the Standard for FRCP 34

New Mexico

Ortega v. Mgmt. & Training Corp., 2017 U.S. Dist. LEXIS 3861 (D.N.M. Jan. 6, 2017) In this employment law case, the plaintiff brought a motion to compel the defendant to produce documents electronically, arguing that the documents needed to be produced as kept in the “usual course of business.” The defendant had previously produced the documents in hard copy, and in the ordinary course of the defendant’s business, the documents were kept in both digital and hard copy formats. The plaintiff conceded that the defendant did not need to produce the documents in both formats, but rather that documents ordinally kept in the dual forms of electronic format and hard copy needed to be produced electronically. Citing FRCP 34, the court denied the plaintiff’s motion to compel the defendants to produce the documents in electronic format. The court noted that FRCP 34 does not require parties to “produce documents in multiple formats,” nor does it require that documents be produced “in the form in which they are ordinarily maintained.” Instead, the court noted, FRCP 34 requires that documents for discovery be produced in a “reasonably usable form,” and documents that are kept electronically cannot be converted to hard copy if the conversion makes them “more difficult or burdensome” to use. Here, as the electronic documents were also normally kept in hard copy, the court found that this did not violate FRCP 34, and the defendant did not have to produce the electronic versions as well.

Keywords: Format, Rule 34, Hard Copy, Electronically, Production