Page 14 - November 2019 BarJournal

FEATUREBUSINESS LITAGATION

HOW DO YOU WANT

YOUR EVIDENCE?

DEMYSTIFYING CIVIL RULE 34’S “REASONABLY USEABLE”

AND “USUAL COURSE” REQUIREMENTS

BY J. MATTHEW LINEHAN

any attorneys fail to ESI. Civ.R. 34(B) entitles the requesting 34 caution that “the option to produce in a
leverage the significant party to specify the form(s) in which ESI reasonably usable form does not mean that
technical requirements is to be produced. If no form is specified a responding party is free to convert [ESI]
in the Ohio and Federal or if an objection is raised, though, “the from the form in which it is ordinarily
M Rules of Civil Procedure responding party must state the form maintained to a different form that makes
concerning the form and organization by or forms it intends to use.” Civ.R. 34(B) it more difficult or burdensome for the
which parties must produce documents (1). And, unless requested otherwise, requesting party to use the information
and electronically stored information the responding party must produce ESI efficiently in the litigation.” For example,
(ESI). Moreover, many attorneys fail to in a “reasonably useable” form. Civ.R. 34(B) in Total Quality Logistics, LLC v. Eric Love,
comply with these requirements, resulting (3); Loc.R. 21.3(F)(3). The responding party Clermont C.P. No. 2015 CVH 01223, the
in time-consuming discovery disputes also must produce all documents and ESI trial court found the plaintiff violated Civ.R.
and costly document reproductions in a either (A) “as kept in the usual course of 34(B)(3)’s “reasonably useable” requirement
manner dictated by their adversaries. This business” or (B) “organized and labeled by producing thousands of previously-
article explains how, in the absence of party to correspond with the categories in the searchable emails in unsearchable form. See
agreement, attorneys can ensure that they request.” Civ.R. 34(B)(2). Such provisions 2016 WL 3038953 at *12-14 (May 16, 2016).
produce and receive electronic discovery in are intended to facilitate orderly, efficient,
a manner consistent with Civil Rule 34. and cost-effective discovery. See 2006 Staff Attorneys can satisfy Civ.R. 34’s “reasonably
Note, Fed.R.Civ.P. 34. useable” requirement by producing in
THE REQUIREMENTS OF CIVIL “native,” but this risks exposing sensitive
RULE 34 HOW TO SATISFY CIV.R. 34’S and privileged information.
Ohio Rule of Civil Procedure 34, like its “REASONABLY USEABLE” One could satisfy Civ.R. 34(B)(3)’s
federal counterpart Fed.R.Civ.P. 34, requires REQUIREMENT “reasonably useable” requirement by
parties to choose the form and organization Civ.R. 34 does not define what is “reasonably producing ESI in the form in which it was
in which they will produce documents and useable.” The 2006 Staff Notes to Fed.R.Civ.P. originally created or maintained, i.e. in

“If the native ESI is searchable
Michael Jackson, Retired Judge by text or metadata,
Cuyahoga County Court of Common Pleas the imaged production
should be searchable by
Mediator Arbitrator Private Judge text or metadata too.”
216-280-5502 mej@wowway.com

Business / Public Sector “native.” This was the solution forced on the
Malpractice / Injury plaintiff in Total Quality Logistics, supra, and
Labor / Employment it is a “prefer[red]” solution in the Southern
District of Ohio. See In re Porsche Cars
North America, Inc. Plastic Coolant Tubes

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