My grandfather grew up a plain spoken farmer in Iowa. He had a bow tie wearing attorney uncle who also knew how to sum up an issue.
It is very nice to see a clearly stated order on the form of production from the Northern District of Iowa, Eastern Division that continues the tradition of telling it like it is.
Magistrate Judge Ross Walters concisely summarized the form of production:
Federal Rule of Civil Procedure 34(b)(2)(E) requires that a party must produce electronically stored information (“ESI”) “in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms . . . .” Similarly the Advisory Committee Note to the 2006 rules amendment (“Advisory Committee Note”) explains that if the form of production has not been specified by agreement or court order “the responding party must produce electronically stored information either in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably useable.”
Readlyn Tel. Co. v. Qwest Communs. Corp., 2013 U.S. Dist. LEXIS 45168, 2-3 (N.D. Iowa Mar. 29, 2013).
The producing party stated it had produced the ESI in a reasonably useable form. The Court saw no reason not to believe them and held that the producing party did not have to re-produce ESI already produced as native files or in a read-only but searchable format. Readlyn, at *3.
There was a big “however”: If there was any discovery that had to be produced subject to the motion to compel, the Court required the ESI to be produced in native format or read-only but searchable format.” Id. The Court stated:
Specifically, if Readlyn ordinarily maintains additional information subject to production by this ruling “in a way that makes it searchable by electronic means,” care shall be taken that the form of production will not “remove[] or significantly degrade[]” the searchable feature. Advisory Committee Note.
Readlyn, at *3.
Bow Tie Thoughts
I am not the first bow tie wearing lawyer in my family.
This is the first court order I have seen that used the phrase “read-only but searchable format.” There are many opinions stating “searchable format,” but this is the only one I have seen with that exact language. I believe this is a more accurate statement of the law regarding productions, because the use of “static images” or “TIFF’s” or “PDF’s” can result in “read-only” productions that are not searchable.
Judge Walters’ use of the phrase “read-only but searchable format” ensured compliance with the language of the Federal Rules of Civil Procedure and Advisory Notes that prohibits degrading searchable features of electronically stored information in discovery. I hope others follow Judge Ross Walters’ lead in other discovery orders on the form of production.
What options are there for producing “read-only but searchable format”? The traditional options are 1) TIFF with extracted text/metadata and 2) Searchable PDF with extracted text/metadata. Parties not using a review platform can conduct basic word searches in a searchable PDF or the text file accompanying a TIFF production. Parties using a review platform can get the benefit of effectively having “free document review” because all the objective information is readily searchable by name, date and other basic information from the face of the document.
I found the phrasing somewhat confusing. TIFF and PDF files are not “read only” formats. “Read only” is an attribute typically used to describe a medium of production (e.g., optical discs or write-protected hard drives), but not a form of production. “Searchable” tends to describe a form of production rather than a medium of production (because virtually any electronically readable medium is also electronically searchable, although the files it holds may not be inherently searchable). Consequently, “read-only but searchable” conflates the medium of production with the form of production, and muddies both pools.