Nov 20, 2011 Fed. Rule 34 advisory committee’s note (2006 Amendment, subdivision (a)). The notes specifically admonish that “references to ‘documents’ appearing in discovery rules that are not amended. Should be interpreted to include electronically stored information as circumstances warrant.” Id. City of Colton, at.39. Civilization 6 Rule 34 Go Go Tomago; Revised Effective January 1, 1989 With amendments effective through July 1, 2018. TABLE OF HEADNOTES. SCOPE OF RULES - ONE.
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In a multi-party complex case, the parties agreed to the production of electronically stored information as TIFFs or JPEGs with fields of information that did not reflect the metadata of the native files. The original production fields included: beginning bates number, ending bates number, page count, CD volume name, producing party, and produced date. The agreement was codified as a case management order. City of Colton v. Am. Promotional Events, Inc., 2011 U.S. Dist. LEXIS 126848, 47-48 (C.D. Cal. Oct. 13, 2011).
As the Court later commented on the production protocol, “the parties did not produce ESI in the manner in which it is kept in the usual course of business, which, at a minimum, would identify the provenance of the files and provide some context as to their meaning.” City of Colton, at *48.
One Defendant brought a motion to compel well into discovery, arguing the United States did not comply with Federal Rule of Civil Procedure Rule 34(b)(2)(E)(i). The Defendants claimed the United States was required to produce documents and ESI as they were kept in the usual course of business or organize and label the production to correspond to the Production Requests. City of Colton, at *29-30.
The United States argued the case management order superseded the requirements of Rule 34(b). City of Colton, at *30. Furthermore, the United States argued that the production of electronically stored information was controlled by Federal Rule of Civil Procedure Rule 34(b)(2)(E)(ii), which requires ESI to be produced as it is ordinarily maintained or in a reasonably useable form. City of Colton, at *30-31.
Federal Rule of Civil Procedure Rule 34(b)(E) states:
(E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:
(i) 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;
(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms;
USCS Fed Rules Civ Proc R 34
The Special Master assigned to the case first heard the dispute and concluded that the case management order did not exempt the parties from Federal Rule of Civil Procedure Rule 34’s requirements.
Moreover, the Special Master found Rule 34(b)(2)(E)(i) applies to electronically stored information as well as paper documents. The United States was ordered to either re-produce its prior production in native file format with corresponding metadata or “categorize by Production Request the Bates numbers of all previously produced ESI.” City of Colton, at *31-32.
Magistrate Judge Suzanne Segal agreed with the Special Master’s analysis that found Rule 34(b)(2)(E)(i) applies to electronically stored information as well as paper documents.
As a preliminary matter, the Magistrate Judge did not find any intent by the Judge who issued the case management order to deprive the parties their rights under the Federal Rules of Civil Procedure to ensure a production was organized in a “satisfactory way.” City of Colton, at *33-36.
The Court engaged in a highly detailed review of the Advisory Committee Notes to Federal Rule of Civil Procedure Rule 34(b)(2)(E). The Court recounted that the Advisory Committee specifically recognized that the term “document” encompassed ESI as a general rule:
“[A] Rule 34 request for production of ‘documents’ should be understood to encompass, and the response should include, electronically stored information unless discovery in the action has clearly distinguished between electronically stored information and ‘documents.'” Fed. R. Civ. P. Rule 34 advisory committee’s note (2006 Amendment, subdivision (a)). The notes specifically admonish that “[r]eferences to ‘documents’ appear[ing] in discovery rules that are not amended . . . should be interpreted to include electronically stored information as circumstances warrant.” Id.
City of Colton, at *39.
Furthermore, the Court also stated that ESI productions may not be “randomly organized:
Rule 34(b) provides that a party must produce documents as they are kept in the usual course of business or must organize and label them to correspond with the categories in the discovery request. The production of electronically stored information should be subject to comparable requirements to protect against deliberate or inadvertent production in ways that raise unnecessary obstacles for the requesting party. Rule 34(b) is amended to ensure similar protection for electronically stored information.” Id. (2006 Amendment, subdivision (b)).
City of Colton, at *40.
Based on the above, plus other case precedent, the Court found that Federal Rule of Civil Procedure Rule 34(b)(2)(E)(i) applied to ESI productions that they “must” be produced as they are kept in the usual course of business or “must” be labeled to correspond to the discovery request. City of Colton, at *44. As the Court explained:
While the specific information a producing party must provide when organizing a production “in the usual course of business” may vary in its details according to the type of document or file produced, it is clear that parties are entitled under the Federal Rules to rationally organized productions so that they may readily identify documents, including ESI, that are responsive to their production requests.
City of Colton, at *47.
The Court went on to state the following:
Unless and until the parties agree to amend their production protocol to include metadata fields sufficient to satisfy the requirement under Rule 34(b)(2)(E)(i) that documents, including ESI, be produced as they are kept in the usual course of business, the Rules require the United States (and Defendants) to organize and label their productions to correspond to the categories in the request.
City of Colton, at *48-49.
The Court addressed a practical issue in the case: there had been over 500 discovery requests from the Defendants. The Court noted that identifying the ESI responsive to each request could be both “challenging” and “time-consuming.” City of Colton, at *49.
The Defendants explained a “compromise” between the parties, where the United States would produce its ESI in native file format as a “substitute” for producing the ESI as it was kept in the usual course of business and instead of labeling its production to correspond to the Production Requests. City of Colton, at *49.
The Court accepted the compromise, stating:
“…because a simultaneous production in native format will provide Defendants with the metadata necessary to identify the provenance of each document and put it into its proper context, the United States may, at its option, provide Defendants with a copy of ESI in native format in any future production in lieu of labeling the production, in addition to producing ESI in TIFF or JPEG format to the Encore common repository pursuant to the parties’ current production protocol.”
City of Colton, at *49-50.
The sole footnote in the opinion stated the following on a blended production with metadata:
The Court strongly encourages the parties to consider the alternative of a new agreement concerning which metadata fields with TIFF/JPEG formats would provide identifying information sufficient to organize an ESI production that is usable for the receiving party and to amend their production protocol accordingly. Such an agreement would allow the United States to avoid the expense of producing ESI in both native and TIFF/JPEG formats, should it exercise that option, and would similarly allow Defendants to avoid the expense of reviewing ESI in two different formats and cross-referencing the productions. Furthermore, TIFF or JPEG productions with embedded metadata would enable Defendants to perform the various field searches they claim are necessary to make sense of the production and would be immediately available for use as exhibits without further processing. This would likely be more useful to Defendants than a report identifying the Production Requests to which documents are responsive with no contextualizing metadata.
City of Colton, at *50-51, fn 1.
Bow Tie Thoughts
I have been a Civil Procedure geek since my first day of law school. Magistrate Judge Suzanne Segal did an exceptional job reviewing past cases, the committee notes and applying practical knowledge on the issue of whether ESI is included in Federal Rule of Civil Procedure Rule 34(b)(2)(E)(i).
Many attorneys and judges have waded into the issue of whether Federal Rule of Civil Procedure Rule 34(b)(2)(E)(i) also applies to electronically stored information. The plain language of the Rule says “documents.” Moreover, Federal Rule of Civil Procedure Rule 34(b)(2)(E)(ii) specifically states “electronically stored information,” highlighting the difference between the two types of discoverable information. Reading the two sections separately is something many lawyers have been doing since 2006.
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On a fundamental level, a party producing any discovery, digital or paper, should not make a disorganized production. As Judge Suzanne Segal stated, “…it is clear that parties are entitled under the Federal Rules to rationally organized productions so that they may readily identify documents, including ESI, that are responsive to their production requests.”City of Colton, at *47.
For anyone who has done hours of document review, having the producing party label the production to correspond to the categories in the requests for production makes review (a little) less burdensome.
One way to accomplish labeling productions can be achieved in most of the review products on the market with issue coding. While conducting review for ESI or documents responsive to a specific request, create issue tags at that time for the production requests. For example, “Request for Production 7,” would be RFP007. The three digit number system would allow for easier sorting in a data by discovery request.
When ESI is determined to be responsive to a request, code it accordingly with its request code. At the time of production, add that field of information with the other extracted text/metadata fields to be produced. Logging this information can increase organization for both the requesting and producing parties to a lawsuit.
The above is one way to help organize a production. There are many other ways to use review tools and processing engines to generate information to label a production to comply with Rule 34(b)(2)(E)(i). Whatever is determined should be agreed upon before document review to increase efficiency.
Discovery wounds are sometimes self-inflicted. Converting native files to static images and not producing the standard bibliographic extracted text and metadata can unintentionally drive up discovery review. As a practical matter, everything that once was searchable has had that feature removed. Additionally, fields of extracted text that could have populated a review database are now empty, waiting for a reviewing attorney to re-enter (at an hourly rate) what should have been produced as a matter of right.
The Court had a very good point in the one footnote about having two different production protocols in one case. Virtually all of the review products on the market can handle blended productions of both ESI and static images such as TIFFs. Moreover, most processing software can produce discovery as native files and TIFFs if there is a need for a blended production. However, this is far easier to do at the beginning of discovery, opposed trying to link a prior production in TIFF format to one with native files. While the technology can handle the different formats, the blended cross-productions having different fields of information can complicate review.
In Re National Contract Poultry Growers, 771 So. 2d 466 (Ala. 2000)
Supreme Court of Alabama
Supreme Court of Alabama.
Kimberly J. Calametti of Gardner, Middlebrooks, Fleming, Gibbons & Kittrell, P.C., Mobile, for National Contract Poultry Growers' Association.
Robert H. Harris of Harris, Caddell & Shanks, P.C., Decatur; and Kenneth T. Fuller, M. Dale Marsh, and M. Chad Tindol of Cassady, Fuller & Marsh, L.L.P., Enterprise, for ConAgra, Inc.
BROWN, Justice.
The National Contract Poultry Growers' Association ('NCPGA') appeals from an order finding it in contempt for its failure to respond to a nonparty subpoena issued at the request of ConAgra, Inc., a defendant in an action pending in the Coffee Circuit Court. We reverse and remand.
On February 27, 1996, a group of poultry growers sued ConAgra, Inc.; one of its subsidiaries, ConAgra Poultry Company; and a number of ConAgra employees, alleging that the defendants had engaged in discriminatory business practices. During the discovery phase of that case, ConAgra requested that the trial court issue a nonparty subpoena to NCPGA for the production of documents.
NCPGA is a corporation organized under the laws of Arkansas, with its principal place of business in Rushton, Louisiana. NCPGA has no office in Alabama, and it is not qualified to do business in Alabama. NCPGA does have an affiliated state organization, the Alabama Contract Poultry Growers' Association. NCPGA's contacts with Alabama are limited to communication with the state association and the fact that a number of its dues-paying members live in Alabama. A number of these members *467 are plaintiffs in the lawsuit pending in the Coffee Circuit Court. The subpoena was served by certified mail on NCPGA at its office in Rushton, Louisiana. The subpoena sought the production of documents kept by NCPGA at that office. NCPGA did not respond to the subpoena.
Because NCPGA did not respond to the subpoena, ConAgra filed a motion to compel production. The motion to compel was served on NCPGA by certified mail at its Rushton, Louisiana, office. The circuit court held a hearing on ConAgra's motion to compel; however, NCPGA did not appear for the hearing. Following the hearing, the trial court entered an order directing NCPGA to comply with the subpoena. This order was also served on NCPGA by certified mail at its principal place of business in Rushton, Louisiana.
On July 27, 1998, NCPGA filed a motion for a reconsideration of the court's order of compulsion. The trial court denied that motion on September 24, 1998. On the advice of counsel, NCPGA did not produce the documents sought by the nonparty subpoena.
On December 23, 1998, ConAgra filed a motion requesting that NCPGA be required to show cause why it should not be held in contempt. A hearing was set on that motion. NCPGA, through counsel, argued that the trial court lacked the jurisdiction to issue, as well as to enforce, a subpoena directed to a nonparty located outside the State of Alabama. In an order dated January 28, 1999, the trial court rejected NCPGA's argument, stating:
'[T]he said National Association appeared, through counsel, and presented arguments by which it contended that the National Association is not subject to the force of a subpoena issued by this Court but served outside the State of Alabama. The Court is unpersuaded by such argument since it appears to the Court, and is conceded by the National Association that: (1) It is a corporation organized under the laws of the State of Louisiana [sic]; (2) it does business in the State of Alabama where it solicits members from whom it solicits and collects dues; and (3) it is not qualified to do business in the State of Alabama and does not have an agent within the State of Alabama authorized to accept service of process. The Court considers that, under these circumstances and upon a consideration of Section 232, Constitution of Alabama, § 10-2B-15.10(b), Code of Alabama 1975, Rule 4(c)(6), and Rule 34, [Ala.R.Civ.P.], the National Association was effectively served with the subject subpoena and that its obedience to that subpoena may be enforced within the State of Alabama. It further appears to the Court that the National Contract Poultry Growers' Association has not shown any cause why it should not be [found] in contempt of this Court by failing to respond to the subject subpoena by producing the records therein described and required to be produced....'
Concluding that NCPGA was in contempt, the trial court ordered it to produce the documents requested by the subpoena and to pay ConAgra's counsel $1,000 for expenses and fees incurred in seeking enforcement of the subpoena. Additionally, the court ordered that until such time as NCPGA purged itself of the contempt, it was forbidden from conducting any business activity in Alabama, including, but not limited to: (1) soliciting or accepting any new members of NCPGA; (2) collecting dues from any current NCPGA members; (3) conducting any NCPGA meetings; (4) communicating in any way with any NCPGA members; and (5) communicating or conducting any kind of business with its corresponding Alabama association. This appeal followed.
NCPGA argues that the trial court lacked jurisdiction to issue and enforce a subpoena directed to a nonparty located outside the State of Alabama. Although technically it is not a party to this appeal, ConAgra has filed a brief in support of its contention that NCPGA was properly *468 served with the subpoena. The gist of ConAgra's argument appears to be that because NCPGA solicits members from Alabama and accepts dues from Alabama poultry growers, it does business in Alabama and has therefore subjected itself to the jurisdiction of Alabama courts. As a foreign corporation doing business in Alabama, ConAgra claims, NCPGA was required to obtain a certificate of authority from the secretary of state. See § 10-215.01, Ala.Code 1975. ConAgra further contends that because NCPGA had no registered agent in Alabama, § 10-2B-15.10, Ala.Code 1975, authorized service as provided for in the Alabama Rules of Civil Procedure.[1]
Rule 34(c), Ala.R.Civ.P., provides that '[a] person not a party to the action may be compelled to produce documents and things or to submit to an inspection as provided in Rule 45,' Ala.R.Civ.P. Rule 45 governs the issuance of subpoenas in civil actions. That rule reads, in pertinent part:
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'(b) Service.
'(1) A subpoena may be served by the sheriff, a deputy sheriff, or by any other person who is not a party and is not less than eighteen (18) years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person or by leaving a copy at the person's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein and, if the person's attendance at a place more than 100 miles from the person's residence is commanded, by tendering to that person the fees for one day's attendance and an amount to reimburse the mileage allowed by law. Prior notice of intent to secure the issuance of a subpoena to command production of documents and things or inspection of premises before trial under the procedure set forth in subparagraph (a)(3) of this rule shall be served on each party in the manner prescribed by Rule 5(b).
'(2) Subject to the provisions of clause (ii) of subparagraph (c)(3)(A) of this rule, a subpoena may be served at any place within the state.
'. . . .
'(c) Protection of Persons Subject to Subpoenas.
'. . . .
'(3)(A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it
'(i) fails to allow reasonable time for compliance;
'(ii) requires a resident of this state who is not a party or an officer of a party to travel to a place more than one hundred (100) miles from the place where that person resides, is employed or regularly transacts business in person, or requires a nonresident of this state Who is not a party or an officer of a party to travel to a place within this state more than one hundred (100) miles from the place of service or, where separate from the place of service, more than one hundred (100) miles from the place where that person is employed or regularly transacts business in person, except that, subject to the provisions of *469 clause (c)(3)(B)(iii) of this rule, such a person may in order to attend trial be commanded to travel from any such place within the state in which the trial is held....'
The fact that NCPGA may have sufficient contacts with the State of Alabama to subject it to the jurisdiction of the Alabama courts under the Alabama long-arm personal-jurisdiction provisions is irrelevant to the question presented in this case. However, a finding that NCPGA is subject to the personal jurisdiction of Alabama courts would not necessarily mean that it was obligated to respond to a subpoena by having to appear and produce documents in an Alabama court in a lawsuit to which it is not a party. The underlying concepts of personal jurisdiction and subpoena power are entirely different. Personal jurisdiction is based on conduct that subjects the nonresident to the power of the Alabama courts to adjudicate its rights and obligations in a legal dispute. For example, a foreign corporation that qualifies to do business in Alabama subjects itself to the jurisdiction of an Alabama court, even if it is not a party to a lawsuit. Ex parte Nissei Sangyo America, Ltd.,577So. 2d912, 914-15 (Ala.1991). By contrast, the subpoena power of an Alabama court over an individual or a corporation that is not a party to a lawsuit is based on the power and authority of the court to compel the attendance of a person at a deposition or the production of documents by a person or entity. See Ex parte Leverton,536So. 2d41, 44 (Ala.1988) (state trial court does not have jurisdiction over a nonparty, out-of-state witness).
Civilization 6 Rule 34 Map
When one seeks a subpoena to secure the attendance of a witness, or to procure the production of documents, located outside the state, a different procedure is warranted. Although we find no Alabama decision addressing this specific situation, one commentator has stated the applicable procedure:
'Process beyond the jurisdiction of the courts to which these rules apply must depend upon the existence of a rule or statute in the other state or country which makes available compulsory process to foreign litigants who desire to return to their home state for trial with the fruits of discovery thus obtained. For our rule extending this courtesy to foreign litigants who need discovery in Alabama for actions pending outside of Alabama, see Rule 28(c) which makes our Rule 45 available.'
1 Champ Lyons, Jr., Alabama Rules of Civil Procedure Annotated § 45.2 (3d ed.1996). This procedure accords with the procedure used in other jurisdictions to secure the issuance of a subpoena for the attendance of a person, or the production of documents from a nonparty, located outside the state's boundaries. See, e.g., Craft v. Chopra,907P.2d1109, 1111 (Okla. App.1995); Phillips Petroleum Co. v. OKC Ltd. Partnership,634So. 2d1186, 1189 (La.1994); In re Special Investigation No. 219, 52 Md.App. 17, 24-25, 445A.2d1081, 1085-86 (1982).
ConAgra sought to subpoena documents in the possession of NCPGA, documents located in Louisiana. Therefore, the subpoena had to be issued by a Louisiana court and had to be served in accordance with Louisiana law. Louisiana law provides:
'A subpoena shall be served and a return thereon made in the same manner and with the same effect as a service of and return on a citation. When a party is summoned as a witness, service of the subpoena may be made by personal service on the witness' attorney of record.'
Art. 1355, La.Code. Civ. Proc. Ann. (West 1984). Article 1261, La.Code. Civ. Proc. Ann., governs service on domestic and foreign corporations. That article requires personal service on the corporation's designated agent, or, in the absence of a designated agent, personal service on any officer, director, resident agent, or an 'employee of suitable age and discretion.' *470 Service by certified mail is allowed only when a subpoena that has been personally served is ordered reissued because of a continuance. Art. 1355.1, La.Code. Civ. Proc. Ann.
For the reasons stated above, the trial court lacked the authority to issue a subpoena directed to NCPGA. Accordingly, NCPGA cannot be held in contempt for failing to respond to that subpoena. The judgment of the trial court holding NCPGA in contempt of court is reversed and this cause is remanded.
REVERSED AND REMANDED.
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HOOPER, C.J., and HOUSTON, SEE, and ENGLAND, JJ., concur.
NOTES
[1] Section 10-2B-15.10, Ala.Code 1975, entitled 'Service on foreign corporation,' states:
'(a) The registered agent of a foreign corporation authorized to transact business in this state is the corporation's agent for service of process, notice, or demand required or permitted by law to be served on the foreign corporation.
Civilization 6 Rule 34 Free
'(b) A foreign corporation may be served as provided by the Alabama Rules of Civil Procedure if the foreign corporation:
Civilization 6 Rule 34 Online
'(1) Has no registered agent or its registered agent cannot be with reasonable diligence served;
'(2) Has withdrawn from transacting business in this state under Section 10-215.20; or
Civilization 6 Rule 34 Map
'(3) Has had its certificate of authority revoked under Section 10-2B-15.31.
'(c) This section does not prescribe the only means, or necessarily the required means, of serving a foreign corporation.'