Addressing the issue of whether electronically-stored information had been produced in compliance with Rule 34, Magistrate Judge Gotsch noted that: “To show that it produced documents as they were kept in the ordinary course of business, a producing party cannot simply assert that the format of its production comports with its usual business practices. A producing party must also show the way in which the documents were produced did not change from how they were kept in the usual course of business.”  In this particular case, the affidavit submitted “affidavit clearly describes the process Winona used to produce its responsive documents to Excel, but provides no explanation of how the responsive documents were kept in the ordinary course of Winona’s business. As a result, Hohulin’s affidavit cannot persuade the Court that the way in which Winona’s responsive documents were produced did not change from how they were originally kept.”

Nevertheless, “Excel’s failure to demonstrate any prejudice from the current state of Winona’s production brings into question whether the organization and labeling of Winona’s 30,000 documents is proportional to the needs of this case. Excel’s demand for strict compliance with Rule 34(b)(2)(E)(i) amounts to a form-over-substance argument. As such, the cost and time Winona would expend to organize and label the 30,000 responsive documents at this time would pose a burden that outweighs the potential benefit of the exercise to Excel. The balance also tips in favor of Winona here because Excel does not dispute that Winona supplemented its production after converting its 30,000 documents to the searchable format Excel itself requested. Moreover, Excel’s objection to Winona’s instant motion reads more like a motion for sanctions for Winona’s original, unsearchable production rather than a reasonable request for organization and labeling of the supplemental production to ensure it gets a fair chance to litigate its claims against Winona. Therefore, the costs of organizing and labeling the documents, as this case is ready to proceed to the dispositive motion stage of litigation, create a burden on Winona that outweighs benefits Excel has not disclosed.”


Excel Enters. v. Winona PVD Coatings, No.16-19, 2017 WL 655861 (N.D.Ind. Feb. 17, 2017).