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Excel Enterprises, LLC v. Winona PVD Coatings, LLC

United States District Court, N.D. Indiana, South Bend Division

February 17, 2017

EXCEL ENTERPRISES, LLC, Plaintiff and Counter-Defendant,
v.
WINONA PVD COATINGS, LLC, Defendant and Counter Plaintiff.

          OPINION AND ORDER

          MICHAEL G. GOTSCH, SR. UNITED STATES MAGISTRATE JUDGE.

         On November 15, 2016, Defendant, Winona PVD Coatings, LLC (“Winona”), filed its Motion to Reconsider Court's Order, Dated November 8, 2016; and Motion for a Telephonic Conference. Plaintiff, Excel Enterprises, LLC (“Excel”), filed its brief in opposition to Winona's motion on November 23, 2016. Winona's motion became ripe on November 30, 2016, when its reply brief was filed.

         I. Relevant Background

         The Court's order dated November 8, 2016, resolved Excel's second motion to compel filed on July 28, 2016. Excel's motion to compel was based upon its allegation that Winona's production of 30, 000 documents responsive to Excel's discovery requests were deficient in multiple ways. On July 20, 2016, before filing the motion to compel, Excel's counsel informed Winona's counsel that the documents were not searchable and identified the format for the documents it preferred. In response, Winona converted all of its responsive documents to Excel's preferred format and delivered them to Excel in the requested format on July 28, 2016.

         On the same day, Excel filed its motion to compel alleging, among other things, that Winona had not complied with the production requirements set forth in Fed. R. Civ. P.34(b)(2)(E)(i), which requires parties to produce documents responsive to requests for production “as they are kept in the usual course of business” or to “organize and label them to correspond to the categories in the request.” Excel argued that Winona's documents were not presented as they were kept in the usual course of business and therefore asked the Court to compel Winona to organize and label the documents to clarify which document responded to which specific discovery request.

         The Court ultimately granted this part of Excel's motion because Winona's assertion that it produced the requested documents as they were kept in the ordinary course of business was not sufficiently supported with appropriate evidence. Without such evidence, the Court concluded that the disjunctive requirements of Rule 34(b)(2)(E)(i) required the organization and labeling of the documents requested by Excel. Accordingly, the Court ordered Winona “to supplement its production to identify by Bates Numbers which documents were produced in response to which specific discovery requests by November 15, 2016.” [DE 52 at 8-9].

         Through the instant motion to reconsider, Winona now presents additional evidence in an attempt to show that its production complies with Rule 34(b)(2)(E)(i). Specifically, Winona attached an affidavit from its Director of Information Technology, Mark Hohulin, in an attempt to show that Winona produced the responsive electronic documents as they are kept in the ordinary course of its business. In his affidavit, Hohulin summarizes in detail the e-discovery procedures Winona used to identify and produce the 30, 000 documents responsive to Excel's discovery requests. [DE 55-1 at 1-3]. Hohulin then asserts that “[t]o [his] knowledge, other than the exclusion of irrelevant documents based on Winona's targeted search queries, the [responsive documents and data] that was sent by Winona to [Winona's counsel] was not modified or reorganized in any fashion, and was produced as it was kept in the usual course of Winona's business.” [DE 55-1 at 3, ¶ 9].

         In addition to submitting Hohulin's affidavit, Winona argues that the 30, 000 documents “contained key identifying information for each document, including a custodial field (which indicates the custodial origin of each document), file type, file name, e-mail to, e-mail from, date sent, and date received.” [DE 55 at 4]. Relying upon Hohulin's affidavit, the identifying information included with each document, and Winona's conversion of the 30, 000 documents into the searchable format requested by Excel, Winona contends that it has complied with Rule 34(b)(2)(E)(i) such that its production is complete and does not prejudice Excel. As a result, Winona asks the Court to vacate the part of its November 8, 2016, order requiring supplemental production to match each document to one of Excel's specific discovery requests.

         Excel objects arguing that Hohulin's affidavit fails to explain how the documents were stripped of their metadata and converted to unsearchable .pdf and .tiff files before the initial production. In addition, Excel contends that Hohulin's affidavit fails to establish that Winona keeps its emails and other electronically stored information in .pdf or .tiff format with no associated metadata in its ordinary course of business. Accordingly, Excel asks the Court to deny Winona's motion to reconsider so as to ensure that Winona's production complies with Rule 34(b)(2)(E)(i) as the Court originally ordered on November 8, 2016.

         II. Analysis

         Because district courts have the inherent power to reconsider interlocutory orders, the reconsideration of such orders is committed to a court's sound discretion. See Fisher v. Nat'l R.R. Passenger Corp., 152 F.R.D. 145, 149 (S.D. Ind. 1993) (noting the “practically unbridled discretion of a district court to reconsider a previous interlocutory order.”). Thus, the considerations governing the reconsideration of interlocutory orders are essentially equitable in nature. See Atchley v. Heritage Cable Vision Assocs., 926 F.Supp. 1381, 1383 (N.D. Ind. 1996) (“Interlocutory judgments are . . . subject to the complete power of the court rendering them to afford such relief as justice requires.”); Akzo Coatings, Inc. v. Aigner Corp., 909 F.Supp. 1154, 1160 (N.D. Ind. 1995) (“[A] motion to reconsider an interlocutory order may be entertained and granted as justice requires.”).

         The crux of Winona's motion to reconsider is that its production complies with the requirements set forth in Fed. R. Civ. P. 34(b)(2)(E)(i), which provides that “[a] party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request . . . .” 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 re Sulfuric Acid Antitrust Litig., 231 F.R.D. 351, 363 (N.D. Ill. 2005); see also Cardenas v. Dorel Juvenile Grp., Inc., 230 F.R.D. 611, 618 (D. Kan. 2005).

         In responding to Excel's second motion to compel, Winona had the opportunity to present evidence that it produced the 30, 000 documents as they were kept in the usual course of its business. Winona's attempt to so demonstrate was determined to be deficient to such an extent that the Court ordered Winona to comply with the other option under Rule 34(b)(2)(E)(i)-organizing and labeling the 30, 000 documents to correspond to the categories in Excel's discovery requests. By submitting Hohulin's affidavit with the instant motion to reconsider, Winona is seeking a second bite at the apple without offering any explanation for why the affidavit was not presented before. Similarly, Winona now seeks further consideration based on the “key identifying information [included in] each [of the 30, 000] document[s it produced], including a custodial field (which indicates the custodial origin of each document), file type, file name, e-mail to, e-mail from, date sent, and date received.” [DE 55 at 4]. Yet again, Winona knew about this identifying information at the time it briefed Excel's motion to compel but failed to explain why it did not direct the Court's attention to it at that time. As such, the Court has no compelling reason to reconsider whether the 30, 000 documents were produced as Winona kept them in the usual course of their business.

         Even if the Court chose to reconsider the question of whether Winona met the “usual court of business” prong of Rule 34(b)(2)(E)(i), Winona could not succeed. Hohulin's 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. [DE 55-1 at 1-3]. As a result, Hohulin's affidavit cannot persuade the Court that the way in which Winona's ...


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