Grant v. Witherspoon
- Barbara Moses
- 1:19-cv-02460
- U.S. District Court · Southern District of New York
- 3
In Grant v. Witherspoon, Magistrate Judge Moses denied defendants’ request to require document-by-document cross-referencing in plaintiff’s discovery production.
The ruling affected the discovery obligations of plaintiff and defendants in Grant v. Witherspoon: plaintiff was not ordered to cross-reference each produced document to a specific request, and the parties remained subject to the requirement for privilege logs when documents were withheld.
What happened
In Grant v. Witherspoon, defendants asked the court to require plaintiff to identify which documents responded to each document request. Defendants argued that plaintiff’s production was difficult to understand because it contained 422 pages without that cross-referencing.
The court explained that a party may produce documents as ordinarily kept in business or organize and label them to match the request categories. It found that requiring cross-referencing here would impose a substantial burden because defendants had served many overlapping requests, while plaintiff’s 422-page production did not impose an excessive burden on defendants.
Magistrate Judge Barbara Moses denied the application and declined to order the requested cross-referencing. She reminded the parties that any documents withheld as privileged must be listed in written privilege logs under the court’s local rule.
The detailed version
- Grant v. Witherspoon · No. 1:19-cv-02460
- Barbara Moses
- Dec. 13, 2019
Background
Defendants filed a letter-motion asking the court for an order concerning plaintiff’s document production. Defendants said plaintiff had produced documents with identifying numbers but had not identified which documents responded to each individual request. They argued that plaintiff’s production was an undifferentiated collection of documents and asked the court to require an itemized cross-reference.
The dispute concerned defendants’ revised document requests. The opinion states that the requests originally numbered 149, not counting subparts. Plaintiff’s production totaled 422 pages. Plaintiff had verified that he substantially complied with the requests, but defendants argued that the verification did not satisfy their demand that responsive documents be specifically identified.
Court’s Analysis
The court noted that Federal Rule of Civil Procedure 34(b)(2)(E)(i) ordinarily permits a party to produce documents as they are kept in the usual course of business or to organize and label them to correspond to the categories in the requests. The court determined that defendants’ attempt to require plaintiff to cross-reference every document to each request was ineffective without a court order requiring that process.
The court declined to issue that order. It considered the substantial burden that cross-referencing would impose on plaintiff, given the number of requests and their overlapping nature. It also found that defendants were not shown to face an undue analytical burden from reviewing the 422-page unlabeled production.
Disposition
The court denied defendants’ application. The parties were reminded that if documents had been withheld based on privilege, they were required to serve written privilege logs under Local Civil Rule 26.2. The order addressed discovery procedure and did not decide the underlying claims in the case.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.