Producing Documents Kept in the Regular Course of Business

Posted on by Jonathan Nelson in Litigation.

The discovery process can create significant stress for parties involved in litigation.  One of the most onerous aspects of discovery, especially for businesses, is document production.  Document production often requires the disclosure of voluminous records, some of which may be several years old and may contain proprietary or sensitive information.  Electronic storage and retrieval capabilities have made the process easier, but responding to requests for production of documents remains burdensome.

The burden has been made slightly less heavy by a ruling by a magistrate judge in the U.S. District Court for the District of Nevada.  In Kwasniewski v. Sanofi-Aventis U.S. L.L.C., No. 2:12-cv-00515-GMN-NJK, 2013 WL 3297182 (D. Nev. June 28, 2013), the Court was tasked with ruling on Plaintiffs’ Motion to Compel Discovery Responses.  Plaintiffs argued that Defendant Sanofi-Aventis’s document production did not provide an index for the documents it produced, nor did it identify which documents were responsive to what requests.

Document production is governed by Federal Rule of Civil Procedure 34, which provides “[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.”  Fed. R. Civ. P. 34(b)(2)(E)(i).  In Kwasniewski, Defendant Sanofi-Aventis maintained that it produced the requested documents as they were kept in the usual course of business.  The Court agreed with Defendant Sanofi-Aventis, holding that its document production complied with Federal Rule of Civil Procedure 34.  The Court supported its decision by noting that Defendant Sanofi-Aventis included a table of contents with the documents it produced – providing a description of the produced documents and their respective location within the production.  The Court also noted that Defendant Sanofi-Aventis’s production included metadata, allowing for the documents to be easily identifiable, and were mostly text searchable.  The Court held, however, that Defendant Sanofi-Aventis’s responses-accompanying its document production were insufficient because they failed to identify the requests to which the produced documents were responsive.

The language and requirement in Maryland Rule 2-422(d) is the same as Federal Rule of Civil Procedure 34(b)(2)(E)(i).  Moreover, the Maryland Court of Special Appeals in Dynamic Corp. v. Shan Enterprises, LLC, 175 Md. App. 211 (2007), held based on the Maryland Rules (and consistent with the Court’s holding based on the Federal Rules in Kwasniewski), that: “[o]nce a party, in response to an RPD [request for production of documents], has properly produced documents for inspection by furnishing them to the other party as they were kept in the usual course of business, the producing party is not required to further analyze, categorize, or attach meaning to the documents.” Dynamic Corp., 175 Md. App. at 229. Although the Court did not address whether responses must identify the requests to which the documents were responsive, the Maryland courts would likely follow the Kwasniewski court’s guidance in that regard.

Ultimately, both the Federal and Maryland Courts have undertaken a strict interpretation of their respective, analogous document production rules. Producing documents as they are kept in the normal course of business complies with a party’s obligation with respect to responding to requests for production of documents, so long as the producing party identifies the requests to which each document is responsive.

Businesses should consistently endeavor to be vigilant in maintaining their records. It is not enough to do so merely when there is a threat of litigation because no one can accurately anticipate all potential issues. If, however, a business exercises forethought and prudence and maintains its records properly, the stresses involved in producing documents and the overall burden of litigation will be substantially diminished.