San Francisco Ladies' Protection and Relief Society v. RPM Billing, LLC, et al., No. 25-cv-06090-RFL (LJC) (N.D. Cal. Sept. 11, 2026), full opinion (PDF)
A requesting party that wants its opponent's IT department to redo a custodian collection has to show that the custodians missed responsive documents. A skilled nursing provider suing its billing agent found that out on September 11 in the Northern District of California. The plaintiff had asked the magistrate judge to take document collection away from the agent's employees who had been involved in the events at issue. The court declined, reasoning that a request of that kind needs evidence that those employees missed documents, or evidence casting doubt on their credibility. This plaintiff had offered what the court called "mere assertions and innuendo".
The same order questioned the defendant's claim that it had produced documents as kept in the usual course of business. On a thin record the court could not decide the point. It signaled that a Bates-numbered set collected from custodians looks more like a litigation-specific collection than like files kept in the usual course. Rule 34 would then require the producing party to organize and label the set to correspond to the requests.
What happened
The parties' disputes reached the court in joint letters in the last weeks of fact discovery. According to the plaintiff, the defendant had relied on employees involved in the events at issue to identify responsive documents. The plaintiff asked the court to require the IT department or an objective third party to search the defendant's email, its Google Drive, and its paper files.
In a separate dispute, the plaintiff contended that a complete folder for its account remained unproduced from the defendant's Google Drive. The plaintiff's support, quoted in its letter, was a deposition answer. The witness had agreed that she skipped the drive the last time she went back to gather emails.
The plaintiff also wanted the production tied to specific requests. The defendant claimed the usual-course option under Rule 34(b)(2)(E)(i). It described its production as a discrete, Bates-numbered set collected from the custodians and systems that held the records, rather than an indiscriminate dump.
The court's analysis
The court declined to dictate how the defendant would comply with its obligation to search for responsive documents. The court noted that the plaintiff had cited no authority for the request. Its showing consisted of assertions rather than evidence.
The deposition answer, the court concluded, did not show that the folder was missing from the production. The plaintiff's letter never addressed whether the folder was searched on another occasion, whether it would be expected to hold emails, or whether such a folder exists at all.
The court left the form-of-production question open because the record gave too little detail about how the documents were produced or organized. Even on that record, a discrete, Bates-numbered set collected from particular custodians and systems "would seem to resemble the sort of litigation-specific collection that must be identified by specific requests", the court observed. Producing without the original metadata would strengthen that reading, it added.
In the court's view, the district's ESI guidelines, its Rule 26(f) checklist, and its model stipulated ESI order likely would have avoided many of the production disputes. Any use of those resources, the court added, was not apparent from the joint letter. The court sent the parties back to meet and confer. The same order resolved most of the parties' disputes over interrogatories.
Why it matters
A witness's admission that a repository likely to hold responsive material was never searched is evidence that the custodians missed documents. So is a produced document that refers to others missing from the set. A document that a nonparty holds but the opponent never produced is a third. The order says only that assertions were not enough. Treat those examples as the showing a court is likely to want, not as a list this order endorsed.
Evidence casting doubt on the custodians' credibility serves the same purpose, though it needs a record too. A general preference for IT-run or third-party collection carries little weight without evidence of that kind. A requesting party who cannot point to any of it should expect the producing party to keep control of its own search.
Decide the production method before the first volume goes out. A party that collects from custodians and Bates-numbers the result may find a court skeptical of its usual-course claim. Counsel then needs to be ready to identify which documents respond to which requests. Producing with the original metadata intact removes one sign of a litigation-specific collection that the court pointed to.
Where the district publishes a model ESI order, adopt it at the Rule 26(f) stage. Without it, the disputes the model order would have settled arrive as a joint letter in the last weeks of discovery. By then a production is expensive to redo.
The full opinion is available as a PDF.
