Characters
• 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 eDiscovery “Forms” Analysis
By
Michael Arkfeld
Scenario, Larry Ludd bumps into Professor Michael “eDiscovery Thinker” Babbage on his way to a pretrial conference and asks his advice about “forms” of discovery. Professor Babbage provides much needed advice, with a little humor.
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Larry Ludd arrived early at the county courthouse before his pre-trial conference when he ran into a familiar face. Walking out of the courthouse was his old law school professor, Professor Michael “eDiscovery Thinker” Babbage.
“Hello, Professor Babbage…It’s Larry Ludd. I took your eDiscovery class my final semester at law school and am on my way to a pretrial conference regarding disclosure of ESI.”
“I remember you,” said Babbage. “You sat in the back row and would always drift off to sleep in my class.”
Those old memories were not what this lawyer, who just passed the bar, wanted to rekindle before his first pre-trial conference. He was able to recall one of Professor Babbage’s lectures where he warned students not to be victims of nonsearchable TIFF files or a “digital data dump,” and felt a slight chill worried that he may not be prepared for the pretrial conference.
Larry knew that documents produced in a printed form created many hours of lengthy work for his firm’s legal staff, as they sifted through page after page of documents to find the “golden egg” of discovery information. Now, with the substantial volume increase of electronically stored information (ESI), he knew that his client could not afford to pay for review of printed documents, and knew that he would have to request ESI in the proper electronic format.
Fearing the worse, but nonetheless, Larry asked the professor if there was any last minute advice concerning the conference, especially regarding the “form of discovery”.
As sweat dripped from Larry’s face the Professor said, “you want me to refresh your knowledge in this important area – happy to do so.”
The professor started, “during the early stages of ESI discovery you will have to make critical decisions as to which “form (s)” will be disclosed or received by a party since it will impact searchability of data, whether metadata is present and several other issues.
Professor Babbage’s then told Larry to remember the following analysis when considering in what “form” to request ESI,
• First, the producing party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request based upon, Rule 34(b)(2)(E)(i).
• Second, Rule 34(a)(1)(A) states that discovery of any “documents or electronically stored information…[must be disclosed in] a reasonably useable form.
• Third, the Professor continued, sometimes a party will produce data and information that makes it impossible to search electronically, which brings back memories of the old “paper dumps.” However, Rule 34, Advisory Committee Note of 2006 protects against that by requiring the responding party to provide electronically kept documents in a form that allows for searching and not in a way that removes or significantly degrades that feature.
• Finally, Rule 34(b) provides for procedures to resolve the issue of what “form” electronically stored information” (ESI) should be disclosed, if the parties disagree. Also, don’t forget—The producing party has an obligation to describe and categorize the nature and location of electronic information under Rule 26(a)(1)(A)(ii), initial disclosures.
As the conversation drew to a close, Ludd heard the professor’s parting bit of advice to his former student.
“Remember Larry, you must file a timely motion challenging the manner or organizational form of production with the court if the producing party ignores your request. If not, then any objection may be waived. That’s not what any lawyer either a first-year or seasoned veteran wants to have to deal with at any point of their case.”
“Request the form(s) of the ESI that is the most advantageous to your needs,” said Professor Babbage. “The devil is in the details.”
Before leaving for the pretrial conference, Ludd had met with the firm’s litigation specialist who advised him to request the data in a “native file” format. That allows for technology assisted review (TAR) searches and will allow a party to view any hidden formulae or other metadata buried in the files.
The next time you are confronted with an ESI discovery issue remember “Old Professor Babbage’s” advice, that requesting data in its original format allows for the genuineness and authenticity. It will also allow you to conduct searches with at least the same ease and functionality afforded by the producing party in the data’s original form, it could be the key to winning the case.
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In the next edition of this series, Larry bumps into the Professor and asks his advice about the different forms of discovery – native, PDF, etc. . Stay tuned.
