Requesting electronically stored information is exactly the same. You can request native files and types of metadata just like you are ordering a pizza. You could also request static images with specific fields of metadata. It does take a little longer to process than 30 minutes.
RPM Pizza, LLC v. Argonaut Great Cent. Ins. Co., drives home this point literally and figuratively.
Magistrate Judge Stephen C. Riedlinger understands the mechanics of how to request the form of production. In this case, the Producing Party (Argonaut) challenged the Requesting Party’s (Domino’s) stated form of production with the argument the Requesting Party had not shown why it was “necessary…to produce in a format that complies” with their production instructions. RPM Pizza, LLC v. Argonaut Great Cent. Ins. Co., 2013 U.S. Dist. LEXIS 165200, at *12-13 (M.D. La. Nov. 15, 2013).
Magistrate Judge Riedlinger was wonderfully direct: The simple answer is that Domino’s is not required to do so. Id.
The Requesting Party’s request for production stated their production format requirements in Instruction Number 5, which apparently was .tiff with metadata. The Producing Party produced PDF’s without metadata. RPM Pizza, LLC, at *11.
The Court explained that a party can specify the form of production pursuant to Federal Rule of Civil Procedure Rule 34(b)(2)(E). RPM Pizza, LLC, at *11-12. The Producing Party waived any objections by not timely making them and attempting to rely on a general objection. Id. The general objection could not reasonably be interpreted as an objection to the Requesting Party’s stated form of production. Id.
As such, the Court ordered the re-production of discovery that did not comply with the request for production. RPM Pizza, LLC, at *14.
Bow Tie Thoughts
We are nearly at the seventh anniversary of the Federal Rules of Civil Procedure. We have had litigation support review software for over twenty years. Yet, the form of production is still a fight for many attorneys.
I recently spoke to a group of attorneys on eDiscovery. I was troubled to find out most of them did not understand the core concepts of requesting ESI. One took the position, “I will not let the other side just go through my client’s computer.”
First off, the Federal Rules of Civil Procedure (and every state as far as I can tell) would never allow that to happen. You need compelling reasons to examine someone’s computer, such as evidence of wrongdoing in a production.
However, those types of reactions keep lawyers from getting anywhere near Rule 34(b)(2)(E) and understanding how to request ESI, let alone how to review a production.
Fighting over the form of production is an expensive battle that should not be happening. Today’s producing software can generate a production of ESI with control numbers, MD5 hashes, and metadata with keystrokes. There is skill involved in winnowing down the data, but the technology is fairly sound at this point.
We also have amazing review technology that allows for clustering of like files, conceptual search and other advanced analytics. Fighting over the form of production only adds time and costs to a lawsuit when you can be analyzing the data instead.
As I said before, stating the form of production is just like ordering a pizza. Say what you want. You do not need to explain to the other side you like chicken garlic pesto.
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, the Web 100 from 2017 to 2018, 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.