Default Production of Electronically Stored Information under the Federal Rules of Civil Procedure: The Requirements of Rule 34(b)

Authors

Vlad J. Kroll

Abstract

This Note explains what parties have to do to meet the requirements for default production of electronic discovery under Rule 34(b) of the Federal Rules of Civil Procedure. Specifically, the author analyzes the meanings of "ordinarily maintained" and "reasonably usable" as used in Rule 34(b). After laying out the background of electronic discovery under the Federal Rules, the author interprets the rule's requirements for default production. First, the author analyzes the rule's language to determine its plain meaning. Then, the author examines the rule's position in the overall scheme of the Federal Rules. Finally, the author examines the rule's drafting history to determine the intent of the drafters. The Note concludes that despite the apparent clarity of the rule's language, the rule is ambiguous by stating that parties have a choice between "ordinarily maintained" format and "reasonably usable" format. In fact, Rule 34(b) requires the production of information in an objectively reasonably accessible format. In effect, "reasonably usable" form is not simply a permitted alternative - it is the required default form of production. The Note ultimately encourages courts and drafters of future rules to explicitly recognize this interpretation of Rule 34(b) and remove any ambiguity from the rule.

Recommended Citation

Vlad J. Kroll, Default Production of Electronically Stored Information under the Federal Rules of Civil Procedure: The Requirements of Rule 34(b), 59 Hastings L.J. 221 (2007).
Available at: https://repository.uclawsf.edu/hastings_law_journal/vol59/iss1/5