There is a strong trend in case law for 2013: Judges understand the form of production.
Magistrate Judge Donna Martinez brought home this point in Saliga v. Chemtura Corp.
The Plaintiff requested ESI in native file format. The Defendant objected. However, the objection was not based on undue burden or proportionality, but that there was “no basis or need” to produce in native format. Moreover, the Defendant argued native file productions prevented Bates numbering or confidential markings in deposition or motion practice. Saliga v. Chemtura Corp., 2013 U.S. Dist. LEXIS 167019, 3-7 (D. Conn. Nov. 25, 2013).
The Court held: The rule says that the requesting party may specify the “form . . . in which [ESI] is to be produced,” Fed. R. Civ. P. 34(b)(1)(C), and the defendant has not shown compelling reasons why it cannot produce the information in the format requested by the plaintiff. Accordingly, the court will grant the plaintiff’s request for native format. Saliga, at *6.
Bow Tie Thoughts
Saliga v. Chemtura Corp. is an excellent discussion of the Federal Rules of Civil Procedure and accompanying case law on the form of production. Judge Martinez is thorough and to the point on the requesting party controls the form of production, subject to an objection from the producing party.
As I have argued before, fear about Bates numbering is not a valid objection. ESI should be maintained in databases with control numbers, Docids, or other ways to sort and organize data. Those who make litigation review software are very good at organizing and searching ESI. Static images reduces the available search features a party can use to analyze ESI.
It is important to understand the difference between reviewing ESI and using ESI at a deposition or in motion practice. Just because you will have a deposition does not mean ALL ESI should be converted to static images for a production. That only reduces the ability to use search technology and likely will drive up the time to conduct review.
Parties should agree on how ESI can be used in deposition or motion practice, whether it is projected natively, or converted to static images or even printed with the MD5 hash value in the footer and an exhibit number. There are several other options as well, but this is an excellent topic for the Rule 26(f) conference.
Objections cannot be hypothetical. If there is a native file that requires redaction of confidential information, specifically object on those grounds to the responsive discovery with the specific objection.