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50. Should the district court grant the farmer's motion to compel?
The manufacturer produces at least 20 distinct products. The farmer moved to compel the production of only the advertising files she originally requested.
A farmer sued a manufacturer in federal court after she suffered injuries while using one of the manufacturer's farming machines. Jurisdiction was based on diversity. The farmer asked the manufacturer to produce «all electronically stored documents regarding the manufacturer's advertising strategy between 2005 and 2012, concerning the farming machines manufactured by the manufacturer.» In response, the manufacturer offered to turn over all its advertising files for the years in question. The manufacturer explained that all its documents pertaining to advertising are filed chronologically, without regard to the product.
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FRCP 34's reference to «electronically stored information» means that computer files are discoverable on the same basis as paper documents. The requesting party may specify the form or forms in which the electronically stored information is to be produced. If the requesting party did not specify the exact format, the responding party may choose between producing the information in a form in which it is ordinarily maintained, or in a reasonably usable form. The general presumption is the responding party bears the cost of producing electronically stored information.
However, FRCP 26(b)(2)(B) provides: «A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.» The court will then decide if the information sought should be produced anyway by evaluating if the disclosure is proportional to the needs of the case.
A is correct. The party from whom documents are requested (here, the manufacturer) may not place the burden of identifying those documents on the party that has requested the documents (here, the farmer). As such, the court should grant the farmer's motion to compel.
B is incorrect. Parties responding to interrogatories may have the option to produce the party's business records when the burden of ascertaining the answer from the records is the same for both parties. However, the option to produce business records (as an alternative to answering interrogatories) provided by the FRCP has no bearing on the obligations of a defendant who has been served with a request to produce electronically stored documents, as is the case here. Therefore, there is no need to resolve whether it would be more difficult for the farmer than for the manufacturer to identify the requested documents.
C is incorrect. This option to produce business records is a different issue than a defendant who has been served with a request to produce documents. As stated above, there is no need to resolve whether it would be more difficult for the farmer than for the manufacturer to identify the requested documents.
D is incorrect. There are no facts to indicate a reason that the farmer would have had to first define «advertising strategy» before the manufacturer would have been required to produce the documents.