Program Mgmt. Int'l v. Tetra Tech EC, Inc.
Program Mgmt. Int'l v. Tetra Tech EC, Inc.
2010 WL 11601879 (W.D. Tex. 2010)
September 3, 2010
Primomo, John W., United States Magistrate Judge
Summary
The court granted PMI's motion to compel and ordered Tetra to comply with Rule 34 by September 15, 2010 and to produce the prime contract for the construction of the base in Baghdadi by that time. Tetra was also ordered to pay PMI's counsel $750 for reasonable expenses incurred in making the motion to compel due to Tetra's failure to produce documents as kept in the usual course of business or organize and label them to correspond to the categories in the request.
PROGRAM MANAGEMENT INTERNATIONAL, Plaintiff,
v.
TETRA TECH EC, INC., Defendant
v.
TETRA TECH EC, INC., Defendant
CIV. NO. SA-09-CA-877-OLG
United States District Court, W.D. Texas, San Antonio Division
Filed September 03, 2010
Primomo, John W., United States Magistrate Judge
AMENDED ORDER1
*1 On this day came on to be considered the motion of plaintiff Program Management International's to compel and for sanctions (docket no. 30, 37) and defendant Tetra Tech EC, Inc.'s response (docket no. 34) thereto. The motion is based on Interrogatories, Requests for Admission and Requests for Productions served by PMI on Tetra on April 23, 2010. On May 24, 2010, Tetra served objections and responses to these discovery requests, then, in July 2010 served an additional 48,236 pages of documents.
1. Timeliness
Tetra objects to consideration of PMI's motion to compel as untimely. The Scheduling Order issued by the Court provided that the parties shall complete all discovery on or before Monday, August 2, 2010. It further states that counsel may by agreement continue discovery beyond the deadline, but there will be no intervention by the Court except in extraordinary circumstances, and no trial setting will be vacated because of information obtained in post-deadline discovery. Generally, then, post-deadline discovery motions are considered untimely. PMI's motion was filed one day late, on August 3, 2010. Nevertheless, the discovery deadline has since been extended to October 15, 2010, so the motion to compel shall be considered.
2. The “Base”
PMI complains that Tetra unnecessarily objected to the reference to the term “Base.” PMI states that each party understands that this suit involves non-payment for construction work on an army base for the Iraqi National Army in Baghdadi, Iraq. PMI points out that the term “Base” was defined in the discovery requests as “the army base for the Iraqi National Army in Khan Baghdadi Al Anbar Province.”
Tetra acknowledges that the jobsite at issue herein, as understood by both parties, was the jobsite at Baghdadi, Iraq. However, Tetra points out that there was another nearby jobsite at Al Asad, Iraq, which was a large military installation. According to Tetra, during the project, the term “Baghdadi” was used to refer to the smaller jobsite a short distance away from “the base” at Al Asad. Tetra asserts that throughout the course of the depositions taken in this case, all witnesses, including Hans Wahlen, principal of PMI, referred to Al Asad as “the Base.” For that reason, when PMI defined the Baghdadi jobsite as “the Base” for purposes of its discovery requests, Tetra objected to avoid confusion and to clarify that the only jobsite at issue herein was the jobsite at Baghdadi, Iraq. Tetra states that, notwithstanding its objection, it responded to the substance of the discovery requests, and no relevant documents were withheld. There being nothing to compel in this regard, PMI's motion to compel, to that extent, is DENIED.
3. Electronic Discovery
Rule 32(b)(2)(E) provides that, unless otherwise stipulated or ordered by the court, a party must produce electronically stored 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. Also, if a request does not specify a form for producing electronically stored information (“ESI”), a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. However, a party need not produce the same electronically stored information in more than one form.
*2 PMI asserts that, on July 20, 2010, Tetra forwarded a set of documents on a CD-ROM allegedly responsive to its Requests for Production, containing 21,181 pages of documents. On July 22, 2010, Tetra forwarded yet another set of responsive documents on a CD-ROM consisting of 27,055 pages. PMI alleges that to make the document productions to PMI, Tetra took documents stored electronically, printed them out, rescanned them and then stored them on an FTP site. Moreover, PMI asserts that when Tetra took the original electronic documents and printed them to rescan, it eliminated all e-mail attachments.
PMI contends that Tetra failed to produce its documents as kept in the regular course of business or in reasonably usable form. In addition to an Order requiring Tetra to comply with Rule 34, PMI seeks an order compelling production of the responsive e-mails with their respective attachments, also as kept in the regular course of business. PMI further complains that Tetra did not produce the prime contract for the construction of the base in Baghdadi.
Tetra begins by arguing that PMI's motion to compel is limited to Tetra's production of relevant e-mail communications because all other documents produced by Tetra are hard copies of documents kept in the regular course of business. Citing the testimony of Charles Romoser, Tetra's Information Technology Director, Tetra asserts that it produced its e-mail communications as kept in the usual course of business and using its usual method of retrieving ESI - keyword searches. Tetra states that ESI is deemed to be produced as it is kept in the usual course of business even when affected in part by the retrieval of the ESI.
Romoser testifies that the inevitable result of using such electronic tools and processes to retrieve potentially relevant e-mail from multiple users through keyword searches is discontinuity in chronology. Each keyword search on the ESI of each user results in retrieval of a different “file,” and how each user may have saved his or her ESI may not have been chronological in the first place. While segments of Tetra's retrieval of responsive ESI are in chronological order, the retrieved documents are not in date order, because to do so would not be how such documents are kept in the usual course of Tetra's business or how such documents would be retrieved in the usual course of Tetra's business. To put Tetra's production of retrieved e-mail documents in chronological order at this time would be to arrange them in a way that is not how Tetra maintains its ESI records in the normal course of its business. Citing Consolidated Rail Corp. v. Grand Trunk Western R.R. Co., 2009 WL 5151745 (E.D.Mich. 2009), Tetra contends that, although the e-mails were not arranged in chronological order, this does not cause its document production of e-mails to be flawed.[2]
Rule 34(b)(2)(E) is meant to prevent a party from obscuring the significance of documents by giving some structure to the production. Consolidated Rail Corp., 2009 WL 5151745 at *3. The party arguing that it produced documents as they were kept in the usual course of business bears the burden of showing that the documents were so kept. Id. A party does so by revealing such information as where the documents were maintained, who maintained them, and whether the documents came from one single source or file or from multiple sources or files. Id. If the producing party produces documents in the manner in which they are kept in the ordinary course of business, Rule 34 imposes no further duty to organize and label the documents to correlate to the particular request to which they are responsive. Id.
*3 In Consolidated Rail Corp., the party from whom document production was sought demonstrated that it produced the 1200 pages of documents as they were kept in the normal course of business. 2009 WL 5151745 at *3. It identified the document custodians and the range of Bates numbers for each custodian's set of documents, along with the date associated with the document creation. Id. It indicates that the documents were produced in the order that they were found on the hard drive of each document's custodian. Id. Email attachments were produced directly following the corresponding email. Id. As noted above, the fact that the emails were not in chronological order did not mean they were not produced as they are kept in the ordinary course of business. Id.
The same cannot be said here. To satisfy Rule 34(b)(2)(E)(i), Tetra must produce the documents either as kept in the usual course of business or must organize and label them to correspond to the categories in the request. Tetra did neither. By using keywords, Tetra was able to find the documents sought by PMI's discovery requests. However, Tetra does not argue that it organized and labeled the documents to respond to certain categories. It insists the documents were produced as they are kept in the usual course of business. While acknowledging that the documents were produced out of chronological order, they excuse this irregularity as insignificant and as a consequence of the search method.
Production of ESI in chronological order is neither a requirement of Rule 34 nor sought by PMI in its motion. Tetra was required to produce the ESI “as they are kept in the usual course of business...” Rule 34(b)(2)(E)(i), Fed.R.Civ.P. According to PMI, Tetra produced 48,236 pages of unlabeled and unorganized documents. It is highly unlikely that the documents were so maintained in Tetra's usual course of business. Also, despite the opinion of the Magistrate Judge in Consolidated Rail Corp., another Magistrate Judge held that a party produces emails in the usual course when it arranges the responsive emails by custodian, in chronological order and with attachments, if any. Valeo Electrical Systems, Inc. v. Cleveland Die & Mfg. Co., 2009 WL 1803216 at *2 (E.D.Mich. 2009). For non-email ESI, a party must produce the files by custodian and by the file's location on the hard drive-directory, subdirectory, and file name. Id.
Tetra's ESI should have been produced as it was searched for. Romoser states, “The search for relevant documents involved creating a number of discrete data sets by identifying relevant mailboxes and then using keyword searches to identify relevant documents within each mailbox... Each separate file of responsive documents retrieved from each mailbox maintained the organization of the e-mails in the same manner in which the user of the mailbox had set up e-mail files. In some cases the order would have been chronological, either oldest to newest or newest to oldest, but in some cases the user may have organized the mailbox differently. Because of the thoroughness in which the searches were made, the number of mailboxes searched, the number of keywords used in each search, a significant number of separate files of responsive documents were created. Three mailboxes were searched, twelve keywords were used in each search, and 36 files were created with the results of each search.”
Tetra does not contend that the 48,236 pages of documents produced were organized in any particular way. Using a keyword search does not result in the production of documents as they are kept in the usual course of business. Tetra has cited no case so holding. A party who in response to a discovery demand has chosen to produce documents as they are ordinarily maintained must do just that-produce the documents organized as they are maintained in the ordinary course of producing party's business, with at least some modicum of information regarding how they are ordinarily kept in order to allow the requesting party to make meaningful use of the documents. Pass & Seymour, Inc. v. Hubbell Inc., 255 F.R.D. 331, 337 (N.D.N.Y. 2008). At a minimum, that means that the disclosing party should provide information about each document which ideally would include, in some fashion, the identity of the custodian or person from whom the documents were obtained, an indication of whether they are retained in hard copy or digital format, assurance that the documents have been produced in the order in which they are maintained, and a general description of the filing system from which they were recovered. Id.Romoser states that “the manner in which the e-mail communications that TtEC has produced in this case is the manner in which TtEC keeps its ESI and retrieves information from ESI in the regular course of its business.” Thus, Tetra was, at the least, required to produce the documents according to the “discrete data sets,” mailboxes searched, and files created. Simply producing a bundle of documents that were responsive to PMI's document requests does not satisfy Rule 34.
*4 Regarding production of ESI, PMI's motion to compel is GRANTED.Tetra is directed to comply with the requirement of Rule 34(b)(2)(E) by September 15, 2010.[3] Tetra must also produce the prime contract for the construction of the base in Baghdadi by that time. PMI seeks sanctions under Rule 37(a), Fed.R.Civ.P., which, in general, requires the imposition of reasonable expenses incurred in making the motion to compel to the movant. Tetra responds that it has, at all times, made a good faith effort to fulfill its obligations under the rules applicable to the discovery process, and has made full, complete and timely responses to PMI's discovery requests.
PMI alleges that its counsel and staff spent $13,673.32 in time and fees attempting to make sense of Tetra's production on the eve of the Tetra depositions. However, Rule 37(a)(5) allows for reasonable expenses incurred in the making of the motion. For that effort, the Court will direct that the sum of $750 be paid by Tetra to PMI's counsel by September 15, 2010.
It is so ORDERED.
Footnotes
This amended order is entered to correct a typographical error found in the original order. (Docket no. 41, pg. 9).
Alternatively, Tetra states that if it is required to put its ESI in chronological order, then the Court should require PMI to also put its ESI in chronological order. Since Tetra chose not to file a motion to compel PMI to comply with Rule 34, Tetra's request shall not be considered.
PMI seeks sanctions, alleging that Tetra has engaged in witness tampering on at least two occasions. This issue apparently concerns the alleged employment relationship vel non between certain potential witnesses and Tetra. As this matter has no bearing on the motion to compel, it shall not be discussed. If substantive relief is sought, by one side or the other, as to Tetra's ability to represent any potential witness, the matter of sanctions can then be addressed.