Miller v. Legacy Bank
Miller v. Legacy Bank
2023 WL 7410627 (W.D. Okla. 2023)
November 8, 2023

DeGiusti, Timothy D.,  United States District Judge

Manner of Production
Failure to Produce
Form of Production
Native Format
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Summary
The Court denied Plaintiff's Motion to Compel Legacy Bank to produce documents in native format and/or through electronic means. Legacy Bank had complied with its obligations under Federal Rule of Civil Procedure 34 by producing documents via a flash drive and as they are kept in the usual course of business. The Court warned that if the issues addressed in this Order are relitigated in future filings, it may consider an award of attorney fees and costs.
Additional Decisions
Marquise MILLER, Plaintiff,
v.
LEGACY BANK, Defendant
Case No. CIV-20-946-D
United States District Court, W.D. Oklahoma
Signed November 08, 2023

Counsel

Marquise Miller, Edmond, OK, Pro Se.
Andrew L. Walding, Walding Law PLLC, Oklahoma City, OK, Jamie L. Bloyd, Robert E. Norman, Cheek & Falcone PLLC, Oklahoma City, OK, for Defendant.
DeGiusti, Timothy D., United States District Judge

ORDER

*1 Before the Court is Plaintiff's Motion to Compel Legacy Bank to Produce Documents in Native Format and/or Through Electronic Means [Doc. No. 268]. Defendant filed a response [Doc. No. 282], and Plaintiff replied [Doc. No. 286]. The matter is fully briefed and at issue.
This case concerns Defendant Legacy Bank's denial of a loan application submitted by pro se Plaintiff Marquise Miller. Plaintiff, an African American pastor in Oklahoma City, applied for an $80,000.00 commercial loan from Defendant to remodel his property located at 2110 N. Lottie Avenue in 2015. Defendant ultimately denied Plaintiff's application based on the “location [of the property], scope of rehabilitation of the property, crime rate in the area, vacancy/abandonment of properties in the surrounding area, and real estate market in the area.” Sec. Am. Compl. [Doc. No. 27], ¶ 117. Plaintiff asserts that Defendant denied his loan application because he is African American and because the property is located in a predominately Black neighborhood. After Defendant denied his loan application, Plaintiff sought and obtained an identical loan from Arvest Bank.
Plaintiff's instant Motion seeks an order from the Court compelling Defendant to produce responsive documents in native form via a Dropbox link, and to identify which documents were produced pursuant to which requests for production.[1]
I. Defendant's production of documents via a flash drive satisfies its duties under the Federal Rules of Civil Procedure.
Plaintiff does not contend that Defendant is improperly withholding relevant documents. Nor does Plaintiff contend that any of Defendant's discovery responses are incomplete or otherwise deficient. Instead, Plaintiff's primary argument in his Motion is one that has been presented to the Court numerous times: Defendant should be compelled to produce certain documents via a Dropbox link, as opposed to a flash drive. See Pl.’s Mot. to Compel at 4-7. Plaintiff argues that, because his requests instructed Defendant to produce documents “in native format or otherwise with metadata intact,” Defendant was required to produce documents via Dropbox. Id. at 6.
*2 The Court rejects this argument. It is well-settled that FED. R. CIV. P. 34(b)(2)(E)(ii), absent a request specifying a form for producing electronically stored information, requires only that a party produce “it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Moreover, a “party need not produce the same electronically stored information in more than one form.” FED. R. CIV. P. 34(b)(2)(E)(iii). Here, Defendant first produced documents to Plaintiff via a Dropbox link, which contained the first 785 pages of Defendant's production. See Def.’s Resp. at 4. Defendant then made a supplemental document production via flash drive, which included the original 785 pages, along with approximately 3,000 more pages. See id. at 3-4. As Defendant notes, whether documents were produced via Dropbox or a flash drive, the documents themselves retained the same searchable PDF form. See id. at 5. The “form” of produced information is a separate issue from how the information is delivered or stored. The Court finds that Defendant has complied with its obligations under Rule 34.
II. Defendant has properly produced documents as they are kept in the usual course of business, as allowed by Federal Rule of Civil Procedure 34.
Plaintiff next argues that Defendant was required to identify which documents were produced pursuant to which request for production. See Pl.’s Mot. to Compel at 9. Plaintiff relies on the Tenth Circuit's opinion in F.D.I.C. v. Daily, 973 F.2d 1525, 1529 (10th Cir. 1992), in which the court noted, in passing, that a party “did not identify which documents were produced pursuant to which request for production.” The quoted excerpt had no bearing on the court's holding in the case, which focused on “whether the district court abused its discretion in entering the default judgment against Daily for failing to comply with discovery demands and court orders, and whether the FSLIC was entitled to a default judgment where it did not propound the discovery at issue.” Id. at 1528; see also Def.’s Resp. at 8 n.6 (describing the district court procedural history leading to the Tenth Circuit's decision in Daily).
FED. R. CIV. P. 34(b)(2)(E)(i) gives the party responding to requests for production two options: “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.” Here, Defendant maintains that it produced responsive documents as they are kept in the usual course of business. See Def.’s Resp. at 8. As Defendant notes, this practice is common in litigation involving business entities, and the Court sees no reason to deviate from the practice in this case. The Court finds that Defendant has complied with its obligations under Rule 34.
For these reasons, Plaintiff's Motion to Compel Legacy Bank to Produce Documents in Native Format and/or Through Electronic Means [Doc. No. 268] is DENIED. The parties shall bear their own costs and fees in connection with this Motion. The Court notes, however, that the core issues addressed in this Motion have been presented to the Court before. If the issues addressed in this Order are relitigated in future filings, the Court will not hesitate to consider an award of attorney fees and costs, as appropriate.
IT IS SO ORDERED this 8th day of November, 2023.

Footnotes

Plaintiff's Motion also includes allegations that: (1) Magistrate Judge Suzanne Mitchell did not allow Plaintiff to video record the parties’ October 2, 2023 discovery conference; and (2) Judge Mitchell allowed one person to remain in the courtroom during the discovery conference without first providing means of identification. See Pl.’s Mot. to Compel at 1-4. The Court's Local Rules expressly prohibit video or audio recording: “The taking of photographs and operation of tape recorders and radio or television broadcasting in the courthouse during the progress of or in connection with judicial proceedings, including proceedings before a United States magistrate judge, whether or not court is actually in session, is prohibited.” LCvR39.3(a). Further, Judge Mitchell retains authority regarding who to allow in her courtroom, and whether that person must provide means of identification. Plaintiff's allegations are, therefore, unfounded.