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Perfecting production

Choosing the appropriate production form is crucial to e-discovery

Production is perhaps the most scrutinized event in e-discovery. Parties are constantly walking the line of substantial compliance with production obligations, especially in today’s electronic age. From failing to redact privileged or private information to failing to produce all responsive data, e-discovery production risks abound now more than ever before.

What does it take to perfect production under the Federal Rules of Civil Procedure? The first step is a firm grasp of Federal Rules 34(b) and 26(f).

Rule 34(b), reasonably usable forms and a dose of common sense

Rule 34 lays out the framework for discovery production. Rule 34(b) permits, but does not require, the requesting party to designate form(s) of production to which the the other party must adhere. If the requesting party specifies the production format, the producing party can either oblige or object and specify the form it intends to produce.

Suppose, however, that the requesting party does not know (or care) how the producing party maintains its electronically stored information (ESI) and remains silent on production form. Assume also that the court has not ordered production in a certain form. The producing party has two options:

  1. Produce in a form in which the ESI is ordinarily maintained
  2. Produce in a reasonably useable form

Producing in a reasonably useable form gives the producing party freedom to “translate” documents to be produced into a form different from that in which the ESI is ordinarily maintained. Why? As the advisory notes following Rule 34 explain, sometimes the producing party may need to provide “technical assistance” to make the produced documents usable by the requestor. For example, a production involving legacy data or database data may need special conversions.

Producers who are aggressive enough to test the “white space” of Rule 34 by using it as a conduit for frustration risk the sanction of further discovery—especially if they degrade the usability of ESI via format laundering. For example, in the 2012 case Independent Marketing Group, Inc. v. Keen, the court found the producer’s conduct—printing out documents from its server and scanning the documents back into digital PDF files devoid of metadata and searchable text—resulted in a production format that was not “reasonably useable” and certainly not “kept in the ordinary course of business.”

Production à la carte

While the propriety of a given production form turns on whether a production is reasonably useable or is produced in a form that is ordinarily maintained in the course of business, several terms of art are often used when negotiating production format. A single production can implicate all of these production formats.

  1. Paper: As illustrated by Armor Screen Corp. v. Storm Catcher, Inc., if a requestor waits to request a hard-copy production until after the producer has already produced in a reasonably useable electronic form, courts will not require the subsequent paper production. Similarly, a party that prints off and produces hard copies of ESI runs the risk of not producing in a reasonable useable form.
  2. Native:
    1. True native: In a true native review, native documents are collected, but are not processed or placed into a database. Instead, they are reviewed in their native programs. True native production falls squarely within the first prong of the default provision of Rule 34, “a form in which the ESI is ordinarily maintained.”
    2. Near native: In a near native review, native documents are collected, processed and indexed, and metadata and text are extracted. The documents are then placed into an e-discovery platform that uses native document viewing software to show the documents in native form.
  3. TIFF imaging and PDFs: Here, native documents are collected, processed and indexed, metadata and text are extracted, and TIFF images are made. Depending on the processing specifications, hidden data, embedded text, tracked changes and spreadsheet formulas may not be visible.

Use it or lose it: Format requests

As the judiciary increasingly stresses the importance of cooperation, it’s paramount to proactively consult with opposition. Federal Rule 26(f)(3) requires parties to meet and discuss production forms at the pre-discovery conference. Failing to do so may bar a later production form request. In Brinckerhoff v. Town of Paradise, for example, the court refused to honor the plaintiff’s belated request for native production because the plaintiff did not address e-discovery at the meet and confer or in production requests.

The bottom line when it comes to production: When producing ESI, all eyes are on you. Drive to early agreement of both what ESI is in scope as well as form of production. Proceed with care and precision to ensure a perfect production.

Contributing Author

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Wayne Wong

Wayne Wong is a managing consultant in the Kroll Ontrack ESI Consulting group. In this role, Wong ensures litigation preparedness for clients through the creation...

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