Know your jurisdiction…or your clients will be pointing their “index” finger at you

March 13, 2009

Authored By: Fernando M. Pinguelo and Matthew Utermark

Citation: Residential Constructors, LLC v. Ace Prop. and Cas. Ins. Co., 2006 U.S. Dist LEXIS 36943 (D. Nev. 2006)

Employee/Employer Implicated: Outside counsel for Plaintiff

e-Lesson Learned: Be conscious of where a case is being filed because some jurisdictions require that produced documents be indexed, while others require only that the data is readable and searchable. If you are aware of the relevant law, it can save you a lot of time, money, and effort when complying with discovery requests.

This case just goes to show you that it pays to do your research when deciding where to bring suit because it could save you time and money. The plaintiff, a construction company, brought suit against the defendant, an insurance company, regarding alleged rain and storm damage to a building construction project. The defendants sought an order compelling the plaintiff to produce the documents that it requested. The plaintiffs contended that the documents were produced in a digital image form complying with the agreement between the parties and had imaged them in the same order in which they were contained in the 41 boxes of paper documents.

The problem? According to the defendants, the plaintiffs provided no table of contexts or index of the documents on the CDs, making it unreasonably difficult to actually utilize them.

The plaintiffs contended that they formatted the documents so that key word searches could be performed, which they argued made the documents more accessible than if they were produced in paper form with a table of contents or index. It ultimately came down to the court’s interpretation of Fed. R. Civ. P. 34(b), which provides that a party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond to the categories in the request.

As a result, the court had to decide whether the plaintiff’s argument that Fed. R. Civ. P. 34(b) does not require them to organize and label produced documents was valid. The court ultimately disagreed with the plaintiffs. According to the court, simply organizing the documents in the manner that they were kept in the usual course of business was not enough. Since the documents were compiled from different entities and locations, the court reasoned that some form of table of contents or index of the materials produced should be provided.

The court concluded that there was no legitimate reason why the plaintiff did not or could not prepare a table of contents or index of what categories of documents were contained in different boxes. The court opined that a table of contents or index was reasonably necessary to determine where the documents produced originated or the type of file in which the original was contained. The court directed the plaintiff to provide to the defendant a table of contents or index for the documents contained on CDs. The court also stated that the plaintiff was not required to index each document in each file, but rather, to identify the files it has produced and in which boxes or group of document numbers the files are located, so as to minimize the burden of going back and completing a table of contents or index.

As many of us know, different courts posed with the same issues may come to different conclusions. When the District of Columbia was posed with this issue in In re Lorazepam and Clorazepate Antitrust Litig., the court stated that so long as the data on the CDs is readable and searchable, no index is required. So it just goes to show you, picking the appropriate place to bring your suit can have a huge impact on your case. Take it from the plaintiffs in this case, where they were forced to return to all the documents that they produced and provide a table of contents within 30 days of the court’s order, which certainly was associated with huge added costs.

Matthew is a magna cum laude graduate of Seton Hall University, where he received a B.S. degree with a concentration in Accounting, and is currently a third year student at Seton Hall Law.

Article posted on March 13, 2009 at 4:00 AM |