Before the court is plaintiff's Motion to Compel Production of Source Code and Electronically Stored Information [37]. After considering the arguments presented by the parties, plaintiff's motion is denied.

Plaintiff seeks electronic production of defendant's internal documents.[1] The production of documents and electronically stored information is governed by Federal Rule of Civil Procedure 34, which dictates that:

Here, defendant has collected over three million pages of documents in response to plaintiff's discovery requests. The files are housed in a central database maintained by third-party vendor Kroll. Defendant represents that the original file structure and metadata for all of the files, which are stored in native format, is preserved as part of the database. Defendant has made the database available for plaintiff to inspect, with two primary limitations: (1) the inspection must be done at defense counsel's offices in Boston; and (2) defendant must pay a cost of $0.07 per page to create Bates-stamped TIFF output files.[2]

1. Location

Plaintiff claims that is should be able to review documents in the Kroll database over the Internet. Defendant argues that the limitation on the situs of document inspection is necessary for several reasons. First, the database holds all responsive documents in defendant's possession, including privileged or otherwise non-discoverable documents. Kroll strongly advised defendant that the security of those documents could not be guaranteed if plaintiff were granted off-site access. Second, the database is also currently in use by defendant, and due to technical limitations, it is not possible for both plaintiff and defendant to access the database simultaneously. Third, this means of access insures that all documents will be delivered to plaintiff as Bates-stamped TIFF files with proper confidentiality designations as needed.

Defendant represents that the level of access provided to plaintiff allows sophisticated full-text Boolean searches of the database. Plaintiff is able to search for, and designate pages to be outputted, and the output format is suitable for importation into plaintiff's litigation support software. Plaintiff disputes these claims, and asserts that during a visit to defendant's offices, the ability to access the database was far more constrained than defendant represents.

*2 The court finds that the Kroll database, as described by defendant, with its complete metadata, native file format, and original file structure information constitutes a production of the documents “as they are kept in the ordinary course of business.” Further, the Kroll database is a reasonable form of production, which allows plaintiff to search for and obtain copies of the responsive documents it desires. Defendant's Rule 34 obligations have been met. There are legitimate data security concerns related to allowing access to the Kroll database outside of Fish & Richardson's offices. However, counsel for defendant also has offices in New York City,[3] and defendant gives no reason why plaintiff's counsel must travel to Boston. Accordingly, the court orders defendant to allow plaintiff to access the Kroll database at Fish's New York City office if plaintiff so elects.

2. Expense

Plaintiff also argues that defendant should pay for copies of documents from the Kroll database. In so doing, plaintiff conflates the expense of production with the expense of copying. Here, there is no question that defendant has already shouldered the cost of gathering and making available responsive documents. This burden is traditionally borne by the responding party. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1970) (“Under [the discovery rules], the presumption is that the responding party must bear the expense of complying with discovery requests,” absent a protective order). However, as noted in Rule 34, a responding party meets its obligations by producing documents for inspection, not by copying them. See, e.g., Obiajulu v. City of Rochester, 166 F.R.D. 293, 297 (W.D.N.Y. 1996) (“Rule 34 allows the plaintiff ‘to inspect and copy’ relevant documents and does not require a responding party to pay for copying costs of voluminous materials.”). Accordingly, plaintiff shall bear the cost of copying all pages that it wishes to copy out of the Kroll database.[4]

IV. CONCLUSION

For the foregoing reasons, plaintiff's Motion to Compel Production of Source Code and Electronically Stored Information [37] is DENIED. Defendant shall provide access to the Kroll database in a manner consistent with this order.

IT IS SO ORDERED.

DATED this 25 day of October, 2007.