E-discovery: Understanding how to manage ESI can save money

Failure to comply with or object to the format of ESI designated in a request for production or subpoena can be costly

Responding to a request for production under Federal Rule of Civil Procedure 34 or a nonparty subpoena under Federal Rule of Procedure 45 is a task often made more arduous and costly when the request or subpoena seeks the production of electronically stored information (ESI). If particular attention is not paid to the ESI format designated in a request/subpoena or if the applicable Federal Rules of Civil Procedure are not strictly complied with in preparing a response, your company will most likely incur the unnecessary expense of correcting a deficient document production as well face exposure to potential attorneys’ fees and costs incurred by the opposing party in resolving the issue through the courts.

Accordingly, if served with a request or subpoena requesting production of ESI, it is critical that the request or subpoena be reviewed at the outset to determine whether or not it specifies the form or forms in which the ESI is to be produced. Additionally, inside and outside counsel must determine if the company is reasonably able to produce the ESI in the requested format.

Contributing Author

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Franklin Zemel

Franklin L. Zemel is a partner in the Fort Lauderdale office of Arnstein & Lehr LLP, where he is a member of the firm's Litigation...

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Contributing Author

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Brett Duker

Brett Duker is an associate in the Fort Lauderdale office of Arnstein & Lehr and a member of the firm’s Litigation Practice Group. He focuses...

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