• Professor Michael “eDiscovery Thinker” Babbage
• Larry Ludd – outside counsel
• Scooter Barnes – former student and attorney
• Sharon Wallenback – lawyer from medium size firm
• William Elder – solo practitioner
• Corrine Counsel – in-house counsel
• Sam Spade – 1st year associate
• Bill Slideruler – IT specialist
Professor Babbage and Type of “Form” to Request
Attorney Larry Ludd finished his pre-trial conference at the courthouse before lunchtime. So, Ludd decided to stop for a quick bite to eat at the courthouse cafeteria. At a corner table he spotted his former Professor Michael “eDiscovery Thinker” Babbage who was sitting alone.
Before Ludd was able to get a word out, he heard his old professor call out. “Mr. Ludd, how did your first ‘real’ pre-trial conference turn out?” questioned Professor Babbage.
“Thanks to our talk before I headed into court, I think I still have a job,” said Ludd.
The former student realized that he didn’t pay as much attention as he thought in Professor Babbage’s class back in law school. Plus, he hadn’t gained any pretrial experience during the last 6 months since graduation while doing research at the law firm.
Ludd knew this was his chance to get a quick refresher on electronically stored information, or ESI, and the “forms” of discovery. He knew he’d better ask “Old Babbage” now for a review, instead of hours later reviewing the information on his own.
“Professor, I’m confused about the difference between the ‘type’ of ESI and the ‘form’ of ESI,” said Ludd. ”How do I know what to ask for in discovery?”
Larry, “In the early stages of electronic discovery, critical decisions have to be made as to the ESI ‘forms’ that will be disclosed or received by the parties in the suit,” said Professor Babbage. “Remember Ludd…the determination of the ESI form that is requested or turned over to the other party is extremely vital,” the old law professor added. “Mark my words…it will impact the case from that point forward, in every aspect of the electronic discovery production, the search and disclosure process.”
Ludd remembered that Professor Babbage often didn’t answer the question directly, as sign of a true and tested old litigator. Instead, he’d weave his response into a long drawn out reply.
“There are many different data file ‘types,’ including e-mail, word processing documents, spreadsheets, voice mail messages, backup e-mail files, deleted e-mail, data files, program files, temporary files, and system history files,” the Professor mentioned.
“When it comes to the ‘form’ of ESI, it is not defined by the amended rules,” said Professor Babbage. “Fed. R. Civ. P. 34(b) has created new procedures to resolve the issue of what ‘form’ ESI should be disclosed, which we discussed last time on your way to Court.”
The professor refreshed his student’s memory that the default disclosure data file “form” for ESI is one that is reasonably usable or how the data is ordinarily maintained. That is generally defined as the “native file.”
For example, if in discovery the “type” of data Ludd is requesting includes the names of employees kept in a spreadsheet, he should ask for it to be in its “native file” which could be a Microsoft Excel file which is generally an .xls file extension document. For example Larry, this would prevent the opposing counsel from providing the “type” of file – say an employee database — in a “form” that is not conducive for you, such as saving the information in a .TIFF file which is nonsearchable.
“The original form of the data can be turned into a different ‘form’ of data,” said Babbage. “A Word document can be saved as a PDF or TIFF, changing it from a word processing file to an image file. Generally, the Courts will find that disclosure in a PDF format is not ‘reasonably usable.’ That’s why you should always ask for information in its native format.”
Professor Babbage pulled up his tablet and started typing out a review sheet for his former student about the several different ESI “forms” data can be produced under that an attorney should be considering when discussing the disclosure of ESI:
• Native File — Default Format
• Images and Load Files
• ASCII, Text and Conversion Formats
• Video and Audio
• ALS and Online ESI repository.
Babbage wanted to make sure that his former student remembered that out of all of the forms he listed, much of electronic discovery is contained in databases, such as Microsoft Outlook e-mail, human resources information, etc. Often, he told Larry, “you will be discovering ESI evidence that is stored in the opposing party’s databases.”
“It’s important to remember, too, that Fed. R. Civ. P. 34 does mention the words ‘form or forms’ in the Rule,” Babbage said. “Plus, the Advisory Committee Note of 2006 of Rule 26 (f) does give some guidance with the different ESI ‘forms’.”
Babbage went on to point out that the form of ESI should be discussed during the pretrial “meet and confer stage” of a case. This will save you time and money later on.
“Mr., Ludd, why do you want the opposing counsel to produce the electronic information in the native format?” asked Professor Babbage. “It’s not just to make your work easier as a big-time lawyer, now is it?”
Ludd quickly replied, “Producing electronic information in its native form allows a party to view the original document including any metadata, metatags and tracked changes.”
“Correct…failing to ask for metadata in the initial request may preclude later discovery of the hidden data,” added Babbage. “You must remember that opposing counsel may pose objections to this form of disclosure since it can be difficult to redact privileged information or Bates stamp in the documents when dealing with native files.”
“I remember how you can get around that argument,” Ludd quickly replied. “You can utilize a combination of native file and TIFF image disclosure to allow for redaction of privileged material and Bates stamping.”
“Don’t forget about your old friend, the judge. He or she can grant a confidentiality protective order providing guidelines on the data release.”
Their quick meeting helped Ludd remember that “Old eDiscovery” Babbage sure did know his way around ESI. Ludd hoped for his career’s sake that he’d bump into his old professor the next time he was back at the courthouse.
In the next edition of this series, Professor Babbage will discuss the different types of “electronically stored information”.