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How ESI is kept in the Usual Course of Business

Firm attorney R. Christopher Dix provides knowledge regarding how a party in a civil case  pending in federal court may respond to another party’s request for information related to the case.   

Documents may be produced in one of two ways: (i) organized and labeled to correspond to the categories in the request; or (ii) as the records are kept in the usual course of business.  See Rule 34(b)(2)(E)(i), Federal Rules of Civil Procedure.  Parties with voluminous documents usually choose the latter method, in part because producing documents “as they are kept in the usual course of business” usually requires less time and expense.  Requesting parties often physically inspect the records of an individual or company first, and then subsequently determine whether to select some or all of the records to be duplicated, labeled and produced.  Increasingly, however, records are in electronic format in the usual course of business, rather than being kept as paper.  A producing party often responds to a request for ESI by stating that records will be produced as they are “kept in the usual course of business.”

A recent decision by U.S. Magistrate Judge Thomas B. Smith from the U.S. District Court for the Middle District of Florida (Orlando Division) provides a useful framework for determining whether ESI has been produced “as the records are kept in the usual course of business.”  Judge Smith explains that “the mode of production should preserve the functional utility of the electronic information produced,” which “normally requires (1) preserving the format of the ESI and (2) providing sufficient information about the context in which it is kept and used.”  See Order at p. 17-18 (emphasis added).

For documents, spreadsheets, presentations and other electronic records other than email, a producing party must provide metadata (i.e., “data about the data”) that indicates at least the file name and the file path for the files produced.  See Order at p. 19.  For emails, the metadata produced should also include the date the email was transmitted, the parties to the email (sender and all recipients) and the subject line of the email.  Id.  Production of the foregoing metadata will enable the requesting party to “substantially replicate the system used by the producing party.”  Id. at p. 17.  Other metadata may be required, depending on the specifics of the case.  There are, of course, exceptions
to every rule.

One additional consideration is that Rule 34(b)(2)(E)(i) applies “unless the parties stipulate or the Court orders otherwise.”  Parties requesting alternative ESI production protocols should raise any concerns or objections as part of the initial meeting of the parties’ attorneys, which is required by Rule 26(f).

Another additional consideration is whether the producing party may disregard the requirements of Rule 34(b)(2)(E)(i)and instead produce ESI pursuant to Rule 34(b)(2)(E)(ii), which permits production “in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.”  See, e.g., Anderson Living Trust et al. v. WPX Energy Production, et al., United States District Court, D. New Mexico, Order dated March 6, 2014.  We will post further updates regarding these topics as the jurisprudence develops.





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