White v. Graceland Coll. Ctr. for Prof’l Dev. & Lifelong Learning, Inc., 2008 WL 3271924 (D. Kan. Aug. 7, 2008) is a case I’ve been waiting for.
From a practitioners view point, I think the form in which ESI is produced is key in managing an e-discovery case. The form of ESI means the format and application that can process that format. Common forms are Microsoft Office documents such as Word (.doc) documents, Excel (.xls) spreadsheets, and PowerPoint (.ppt) presentations. Adobe’s Portable Document Format (.pdf) is also popular, in part because Adobe makes reader for the format free to the public. (It is interesting to note that the .pdf format contains substantially less internal metadata than Microsoft Word files do.) The Tagged Image File Format, .tiff, was created in an attempt to bring standardization to scanners, but is now widely seen in scanning, optical character recognition, and faxing applications.
In discussing the form of ESI production, we also speak of native format. By that we mean the form in which documents were originally created, edited, and stored. Thus the native format for Word documents are the .doc files, as opposed to the Acrobat .pdf format to which a Word document can be converted.
There are numerous tools and techniques available for investigating discovery production when it is in electronic, searchable forms. I know attorneys who say they prefer the traditional paper production, but when we start talking about terabytes of data, that is a warehouse full of paper documents!
The e-discovery amendments to the Federal Rules of Civil Procedure allow the requesting party to specify the form in which the ESI is to be produced. If the requester fails to do so, the producer is directed to disclose the forms it will use. If the parties cannot agree on the form, they may have to confer with the court. The rules allow the producer to transform the ESI into a “reasonably usable” alternate form, however, the amendments are clear that if the ESI is searchable by the producer, it must be searchable by the requester. The Committee Notes that accompany the amendments warn “[the] option to produce in a reasonably usable form does not mean that a responding party is free to convert [ESI] from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation," and that "[i]f the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature." [Emphasis added.]
In the White case, the plaintiff called for certain documents including emails and attachments. In producing emails and attachments, the defendant forwarded the emails to an administrative assistant who then converted them into Adobe .pdf format. Those documents were then printed and provided to the plaintiff in paper form.
The court ruled that the emails and attachments were not produced in a “reasonably usable” form and that the plaintiff was entitled to them in native form with their metadata intact. U.S. Magistrate Judge David Waxse went on to say
The Court notes that this discovery dispute is an example of one which the re-production of discovery could have been altogether avoided had the parties adequately conferred at their Fed. R. Civ. P. 26(f) conference regarding production of electronically stored information ("ESI"). While not all disputes regarding discovery of ESI can be prevented by early efforts by counsel to investigate and consider the possible forms discovery may be produced, many disputes could be managed and avoided altogether by discussing the issue before requests for production are served. Guideline 4(f) of the Guidelines of Discovery of Electronically Stored Information, available on the District of Kansas' website, specifically mentions that during the Fed. R. Civ. P. 26(f) conference, counsel should attempt to agree on the format and media to be used in the production of the ESI. [Emphasis added.]
While the point of this blog post is the importance of addressing the form of ESI production, I couldn’t help including the plug for adequate preparation for, and participation in, the Rules 26 conference.
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