"We Don't Want To" is Not an Objection

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.

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.

  1. It should be telling that defendant needed to go back to 2001 (and even then misuse the source) to find support that TIFs are better than natives.

    Quoting the judge: “The defendant is correct that ‘TIFF is the most common choice.'” She reached the correct result in the end, but she should not have let defendant get away with this.

    The defendant takes the quote from a 2001 guide written to describe considerations that may arise when lawyers use electronic equipment to display evidence during trial. That guide indicates that TIF is most common because it can be used by presentation software in the courtroom. That same guide also says that when documents are created in digital forms “the first option is to produce them in their native format.”

    1. Good points. It also highlights there is a big difference between how to conduct discovery vs trial presentation.

  2. I think you’ve nailed the distinction here nicely, and that is the difference between discovery and depositions, motion practice and trial presentation. Everyone talks about the well-known fact that, of the tens or hundreds of thousands of documents produced in discovery, only a few ever wind up as exhibits. Letting that tail wag the discovery dog makes no sense whatsoever, particularly when it inhibits our ability to find those few documents that merit use as exhibits.