[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
In Pincus Law Grp PLLC v. MJ Connections, Inc., 2025 WL 1070384 (E.D.N.Y. Apr. 9, 2025), the court ruled in favor of a discovering party and ordered reproduction of previously-produced documents under the terms of an ESI Protocol. The court also addressed what it considered to be a “dump truck” production.
Pincus sued MJ alleging interference with and breach of contract, among other claims. The contract was between a law firm and a consulting firm “to provide services related to, inter alia, client relations and business development.” Essentially and oversimplified, Pincus alleged that it paid an additional fee in return for an agreement that MJ would not provide consulting services to competitors.
MJC filed a Second Request for Production and Pincus responded. MJC asserted that Pincus’s production was a “document dump” of non-searchable static images.
In its subsequent motion to compel, MJC asked the court to “order Plaintiff to either reproduce its production in response to the Second Request without thousands of pages of ‘plainly irrelevant documents’ and in a searchable format, or pay MJC’s legal fees for sorting through these documents.”
Generally, under Fed.R.Civ.P. 34(b)(2)(E)(iii): “A party need not produce the same electronically stored information in more than one form.”
However, the Pincus court wrote that motions to compel “are left to the court’s sound discretion.” And, here, there was an ESI Protocol.
The Pincus court wrote that:
Defendant [MJC] additionally requests that Plaintiff [Pincus] reproduce documents related to Plaintiff’s “improper production … [of] over 12,000 pages of non-searchable PDF,” a majority of which MJC contends are “entirely unrelated” to the Second Request…. Defendant contends this “document dump” served “no other purpose than to obstruct MJC’s review process … and impede [its] ability to prepare for … deposition scheduled April 4th.” …
Pincus Law Grp PLLC v. MJ Connections, Inc., 2025 WL 1070384 (E.D.N.Y. Apr. 9, 2025).
The court explained that:
Conversely, Plaintiff maintains the voluminous production was done in good faith and in compliance with the relevant discovery requests made by Defendant. … With respect to the “non-searchability” of the documents, Plaintiff asserts these documents were produced in a similar or same manner as were other documents that had previously been produced for Defendant, yet Defendant never objected in the past.
Id.
The Pincus court, noting that Rule 34 permits a requesting party to designate the form or forms of production, stated:
Where a dispute arises as to the production of ESI, an ESI protocol that has been mutually entered into by the parties will govern so long as the protocol addresses the issue. [Emphasis added].
Pincus Law Grp PLLC v. MJ Connections, Inc., 2025 WL 1070384 (E.D.N.Y. Apr. 9, 2025).
Where a dispute arises as to the production of ESI, an ESI protocol that has been mutually entered into by the parties will govern so long as the protocol addresses the issue. [Emphasis added].
Id.
The court then examined the ESI Protocol:
Here, the ESI Stipulation filed with the Court and then so-ordered notes the following regarding production of Native files: “Counsel may seek supplemental production of native files for any produced images that are deemed unusable, unsearchable, or unduly burdensome.”
Id.
Next, the court applied the ESI Protocol to the facts presented, writing:
When Plaintiff delivered the nearly 12,000 documents at issue to Defendant, they allegedly arrived in unsearchable form…. It follows, therefore, that based upon the plain text of the ESI Stipulation which the parties knowingly and mutually entered into, Defendant is well within its right to request reproduction of documents which are in an unsearchable form. Indeed, the ESI Stipulation does not include a provision that if a party fails to object to the form of documents produced in one instance the same party is deemed to have waived its right to a future objection. Plaintiff’s argument to that effect is, therefore, unpersuasive. Rather, the parties are reminded—to use their own words—that ESI will be produced “subject to the specifications annexed [to the joint stipulation].” [Emphasis added].
Id.
Additionally, MJC asserted that 90% of the documents were irrelevant. Pincus responded that they were relevant or potentially relevant “and were produced to ensure it fully complied with the Second Request. In doing so, Plaintiff urges the Court to recognize that ‘it has nothing to hide’ and it is “commit[ed] to full disclosure and transparency.”
The court disagreed with the assertion that an alleged overproduction shows transparency, writing:
Though such statements appear to conform to the underlying goals of the federal rules governing discovery, “well done is better than well said.” Plaintiff neglects to connect how resumes and not-for-profit minute entries, coupled with Florida eviction notices, are relevant to the current breach of contract action. The rules governing discovery are to be liberally construed, but they are not meant to permit production of the documents that have minimal, if any, relevant value.
Accordingly, Plaintiff is directed to reproduce its production in response to the Second Request not only in a searchable format, but also without the documents previously mentioned or ones similar in nature. [emphasis in original, quoting Benjamin Franklin].
Id.
Rule 34 establishes a specific procedure governing the form of production.
Fed.R.Civ.P. 34 (b)(1)(C) states that a document request “may specify the form or forms in which electronically stored information is to be produced.” For example, the United States District Court for the District of Maryland has posted Appendix 2.2, a “Native Production Protocol,” identifying fields of metadata that can be used to specify the form of a native production. ESI-Principles.pdf.
Rule 34(b)(2)(D) states that: “The response may state an objection to a requested form for producing electronically stored information.”
The Rule adds that: “If the responding party objects to a requested form–or if no form was specified in the request–the party must state the form or forms it intends to use.” [Emphasis added].
Non-compliance carries risks. The 2006 Advisory Committee Note states that:
A party that responds to a discovery request by simply producing electronically stored information in a form of its choice, without identifying that form in advance of the production in the response required by Rule 34(b), runs a risk that the requesting party can show that the produced form is not reasonably usable and that it is entitled to production of some or all of the information in an additional form.
The 2006 Advisory Committee Note.
Further, the phrase “intends to use” has a meaning. It front loads any dispute over form so that it can be resolved before production. The Advisory Committee Note states:
If the requesting party is not satisfied with the form stated by the responding party, or if the responding party has objected to the form specified by the requesting party, the parties must meet and confer under Rule 37(a)(2)(B) in an effort to resolve the matter before the requesting party can file a motion to compel. If they cannot agree and the court resolves the dispute, the court is not limited to the forms initially chosen by the requesting party, stated by the responding party, or specified in this rule for situations in which there is no court order or party agreement.
The 2006 Advisory Committee Note.
A well-planned and executed production protocol should minimize the risk, cost, and delay associated with a “do over.”
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