What Happens When the Requesting Party Does Not State a Form of Production?

Federal Rule of Civil Procedure Rule 34 allows for a requesting party to state the form of production in their request. In the event a requesting party does not state the form of production, the responding party can state the form of production in their reply. However, if no party states the form of production, the ESI must be produced in the form it is ordinarily maintained or in a reasonably usable form.

So, how does this all work when the request does not state the form of production? Can the responding side product ESI as paper and run away laughing like giddy children as their opponents weed through a semi-truck full of documents?

Short answer: NO.

Federal Courts have applied the Advisory Committee notes in applying Federal Rule of Civil Procedure 34(b) in form of production disputes. Case law has held that a party may produce ESI in a “reasonably useable form,” but ESI ordinarily kept in electronically searchable form “should not be produced in a form that removes or significantly degrades this feature.”  In re Payment Card Interchange Fee, Slip Copy, 1007 WL 121426 (E.D.N.Y.), 4, citing Fed.R.Civ.P. 34(b), 2006 Amendment, Advisory Committee’s Note.

Judge Waxse’s opinion in White v. The Graceland College Center, 2008 U.S. Dist. LEXIS 63088 ( D. Kan. Aug. 7, 2008 ) also addressed the issue of not specifying the form of production. In White, the plaintiff did not specify the form of production and the defendants converted native file email messages and attachments to PDFs and then printed the PDFs as a paper production.

The Court found that the Defendants failed to produce the emails and attachments in either the form in which they are ordinarily maintained, or in a “reasonably usable form,” as required by Rule 34(b)(2)(E)(ii). The producing party was compelled to reproduce their production in native file format. The court relied on the Advisory Committee notes to Rule 34, stating that “Defendants’ option to produce in a reasonably usable form does not mean that they are free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for Plaintiff to use the information efficiently in the litigation.”

Case law has consistently followed the Advisory Committee Notes when a party fails to specify a form of production and the producing party attempts to remove the “search-ability” of electronically stored information. While converting to PDF and then printing is an extreme example, Courts have had little tolerance for parties making productions difficult or burdensome to use in litigation.