Requesting the form of production is not like telling the bag boy at the grocery store “paper please.” Moreover, you do not enter a grocery store and ask for “paper please” before you have even done any shopping.
That is what happened in a recent case. In theory, parties are to meet and confer on the form of production during their mandatory Federal Rule of Civil Procedure 26(f) conference. The parties’ agreements on discovery are then captured on their Form 35 report to the court. From there, the court may codify the agreement in a Rule 16 scheduling order.
In Gregg v. Local 305 IBEW, 2008 U.S. Dist. LEXIS 102163 ( N.D. Ind., Dec. 17, 2008 ) the plaintiff filed a motion requesting that all electronically stored information (ESI) produced during discovery be produced as paper and at the producing party’s expense. Gregg v. Local 305 IBEW, 1.
The court quickly denied the motion in a one page opinion.
The motion was apparently filed while the parties were preparing their meet and confer report before the preliminary pretrial conference. The Court noted the form of production issue was never discussed during the meet and confer. Gregg v. Local 305 IBEW, 1.
The Court denied the Plaintiff’s “pre-emptive paper form of production” motion with the admonishment to the attorneys for them to discuss and agree on a form of production for electronically stored information, pursuant to Fed. R. Civ. P. 26(f)(3)(C). The Court further noted that form of production issues could be addressed in the court’s scheduling order if the parties did not agree or after an actual discovery request. Gregg v. Local 305 IBEW, 1.
As seen before in other opinions, discovery issues such as the form of production must be addressed by the parties during the meet and confer process. Cooperation is key to avoiding extra court costs and wasting time on motion practice that could be avoided.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.