*1 The defendant, O'Brien & Gere Engineers, Inc., (“OBG”) has filed a Motion to Compel addressed to the Request for Production it sent to the plaintiff, Innis Arden Golf Club, Inc. (“Innis”) dated March 28, 2011. The plaintiff responded on July 19, 2011 with the production of 64,350 pages of documents. The defendant seeks a motion to compel stating that the electronic production of documents by the plaintiff does not provide an orderly, readable, workable response and thus they are requesting that the court order the plaintiff to re-produce the documents with accurate document separation, proper load files and pertinent metadata or in the alternative produce proper load files that accurately reflect the contents of the documents they produced. On August 16, 2011, the defendant submitted a memorandum in support of its position. The plaintiff filed a memorandum in opposition to the motion to compel dated September 26, 2011. The defendant submitted a reply memorandum dated October 14, 2011.
Practice Book § 13–14(a) provides in pertinent part that a trial court “may on motion [to compel production], make such order as the ends of justice require.” “Consequently, the granting or denial of a discovery request rests in the sound discretion of the court ...” (Internal quotation marks omitted.) Berglass v. Berglass, 71 Conn.App. 771, 786, 804 A.2d 889 (2002).
In the present action, the defendant, OBG, submitted a request for production of eleven separate document requests from the plaintiff. The production request was complied with in July by providing 64,350 pages of documents to the defendant without a separation as to which response the documents referred to. The documents were produced in electronic form. The defendant seeks this motion to compel the plaintiff to re-produce all of the documents because they contend that the production by the plaintiff lacked organization or indexing which would assist the defendant in reading and utilizing the documents for purposes of their defense of the action. The plaintiff contends that it provided all of the documents in its possession in response to the production request and that the difficulty is not the fault of the plaintiff but is a result of the different electronic formats that have made the production incompatible with the defendant's system. The plaintiff contends that because the defendant utilizes the Summation system and not Adobe, the original attempt to access the files was not successful. However, thereafter the parties made adjustments in an attempt to access the documents which the defendants contend have not corrected all of the deficiencies. In particular, the defendants have raised concerns that the documents are not organized and indexed so that, for instance, there is no rhyme or reason for their order.
Some of the documents are improperly separated while others are attached for no reason. The parties have attempted to resolve the dispute but have been unsuccessful in reaching a resolution. One of the difficulties appears to be that the Connecticut courts have not provided a rule to address electronic discovery that would give guidance in a manner similar to the federal rules.
*2 Both of the parties recognize that the federal court has adopted specific rules to address the new age of electronic discovery. Federal Rule of Civil Procedure 34(b)(2)(E) provides as follows: (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and (iii) A party need not produce the same electronically stored information in more than one form.
The plaintiff argues that they were not obliged to provide the documents in any particular form because the defendant did not request this. However, even after arguing this point the plaintiff and defendant did attempt to agree upon a system to help in the exchange of the documents. Although the plaintiff contends this is the problem, in reality, this is not the stumbling block. It is clear that the plaintiff produced the documents in mass without any designation as to which documents were responsive to which production request. The documents were not organized or indexed in a manner that would be sequential based upon the content but were simply given to the defendant to sort out. Even without considering the electronic difficulties, this manner of discovery is not sufficient. This type of discovery does not further the intent of discovery but only creates a stumbling block for the opposing party who has all of these documents and no where to go. The federal rules require that the documents are organized or labeled to correspond to the categories in the request. It is obvious that this was not done and has left the defendants with a mass of documents without a particular connection to the production requests. The situation which has come before this court is not a new problem. The court does not challenge the plaintiff's representations that it provided everything in their possession in response to the production request. Counsel for the plaintiff argued that he provided the documents as they were kept by the plaintiff and therefore he had satisfied the discovery obligations. The court recognizes that the plaintiff has made an effort to better organize and assist the defendant in their access to the documents but the defendant argues that this is not good enough. In fact, the plaintiff's efforts to allow a compatible system to access may have caused some difficulty in providing complete information.
The defendant has raised a very valid argument that with no indexing the 64,350 pages do not aid them in reviewing and conducting proper discovery to develop a defense strategy.
The plaintiff has indicated its willingness to assist in the process but has objected to the request to re-produce all of the documents in a different form with load files, metadata and an index of which documents are responsive to each production request.
*3 The parties agree that the cost to create a load file is approximately $550.00. In accordance with the argument of counsel this would alleviate a great deal of difficulty in determining the content of the documents and thus would permit the defendants to search the documents and access necessary information for their defense. The court agrees that the load file should be provided but does not agree that the plaintiff should bear the costs. Therefore, the court will order that the plaintiff cooperate with the defendants to prepare a load file and the costs of such will be borne by the defendants.
The defendant contends that at a minimum the document production should include metadata. The defendant contends that the metadata is standard in electronic production. However, because this is not addressed in the rules of practice in Connecticut, there is no particular standard except for a reasonableness review to enforce methods for complete and meaningful discovery. The court agrees that the metadata is an important source for the defendants as part of the orderly production of the electronic disclosure. The plaintiffs have agreed to assist the defendants in clarifying or providing any additional information related to the metadata. Therefore, the court orders that the plaintiff fully cooperate in completing the metadata requested by the defendants in an appropriate format. Outside costs, if any, other than copying costs for the metadata will also be borne by the defendants.
The court will not order the plaintiff to re-produce in its entirety the documents already provided to the defendants.