Thinking About Discovery — In today’s electronic world
How do you obtain information in a lawsuit in 2014?
The practice of EDiscovery involves “electronically stored information” (ESI). Ultimately, whether the data comes in an image of the document or raw data, it will be reduced to a coalescent image such as a PDF, a TIFF, or as a JPEG.
The Rules govern the course of discovery for everyone.
The Florida Rules of Civil Procedure were amended in 2012 to include ESI discovery, although the actual rules are found scattered amongst other rules. For example, when sending a Request for Production under FRCP 1.350, the rule includes the following amendment:
When producing documents, the producing party shall either produce them as they are kept in the usual course of business or shall identify them to correspond with the categories in the request. A request for electronically stored information may specify the form or forms in which electronically stored information is to be produced. If the responding party objects to a requested form, or if no form is specified in the request, the responding party must state the form or forms it intends to use. If a request for electronically stored information does not specify the form of production, the producing party must produce the information in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. The party submitting the request may move for an order under rule 1.380 concerning any objection, failure to respond to the request, or any part of it, or failure to permit inspection as requested. (emphasis added)
The Federal Rules of Civil Procedure have a similar provision under Rule 34(b)(1)(C):
(1) Contents of the Request.
(A) must describe with reasonable particularity each item or category of items to be inspected;
(B) must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and
(C) may specify the form or forms in which electronically stored information is to be produced.(emphasis added)
Both rules set forth the requesting party “may” specify the forms in which the ESI is produced. There are a couple of problems with this that the federal rules try to solve by requiring a pre-discovery meeting, commonly called a “meet & greet”, under Rule 26. It is during the meet & greet conference the parties can determine what discovery is likely to be sought and in what form the parties can agree to produce discovery to each other.
If no meeting is had in federal court or if the case is in Florida state court, hopefully care was taken in drafting a party’s discovery to specifically set forth the form in which the requesting party wants the production delivered. There are a couple of reasons.
The most obvious reason is that when you receive the response to discovery, you want to receive it in a format that is the most conducive to your ability to immediately begin to review it. The other reason is so the producing party does not get to choose how it is produced – either as it is maintained in the ordinary course of business or “in a reasonably usable form or forms”.
The way the material is maintained in the ordinary course of business could be, strictly speaking, in some native arcane, proprietary software you can not use when you receive it.
The other way the material could be produced; “in a reasonably usable form or forms” is the usual problem, at least for those who will ultimately have to manage the documents within the law firm. Reasonably useable form could be:
- PDF’s or TIFF’s without OCR files; in other words, pictures of the documents without the ability to full text search them.
- They could be PDF’s, TIFF’s or JPEG’s scanned at such a high resolution they eat up all the memory you have available and become sluggish and error ridden to use.
- It could also be that the producing party takes all their full text searchable digital images and prints them into 30 or 40 or 100 boxes and produces hard copy documents to you.
The other problems encountered with not being specific in a request are unique documents:
- Spreadsheets: optimally you want these produced as copies in the image files and separately produced in native format with all formulas included.
- Emails: ask they be produced as image files with the header information shown or immediately following the email image.
- Power Point: Slides should be produced as color images and note panels should either be included or produced immediately following the slide to which they apply or, depending on the software, produce them as native files.
- Databases: Other than proprietary software – produce the database in native format, intact as kept.
A request for production insufficiently detailed and specific will not provide the judge with a solid basis to consider a motion to compel and will provide the opposing party with plenty of ammunition to support a poor production response that will be of reduced value.