The Presumptive Form of Production

Arizona is home of many great wonders, from the Grand Canyon to the ASU Arkfeld eDiscovery Conference. I highly recommend visiting both. Arizona now has new Rules of Civil Procedure that will continue to help litigation with electronically stored information.

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The new Arizona Rules of Civil Procedure go into effect on January 1, 2017. In re Ariz. Rules of Civ. Procedure All (Sep. 2, 2016, No. R-16-0010) 2016 Ariz. LEXIS 259, at *1. Every attorney in Arizona should take note of these new Rules. However, every attorney should take of what the Rules say on the form of production:

Presumptive Form of Production. Unless the parties agree or the court orders otherwise, a party must produce electronically stored information in the form requested by the receiving party. If the receiving party does not specify a form, the producing party may produce the electronically stored information in native form or in another reasonably usable form that will enable the receiving party to have the same ability to access, search, and display the information as the producing party.

Ariz. R. Civ. P. Rule 26.1(b)(2)(d).

The above passage from the pending Arizona Rules of Civil Procedure is an amazingly clear statement on the “presumptive” form of production. Parties should produce ESI in the form the requesting party stated, or if no form is stated, then in native file format. This is a refreshing acknowledgement of reality: the form in which data is ordinarily maintained is almost always native file format. It would be an extremely odd business practice for employees to print every email at the end of the day as a non-searchable PDF and delete the original message. While strange things can happen in a case, a company with such a business practice would look like their standard operating procedures are nefarious.

The description of a reasonably useable form that is searchable should deter those who attempt to produce ESI as non-searchable static images. “Searchable” features are vital for being able to manage electronically stored information. ESI that is converted to static images with no searchable fields are a throwback to the bad old days of weeding through boxes of paper. The difference is you do not need a warehouse the size of a football stadium to store the data from a two terabyte hard drive. Few attorneys enjoy the drudgery of slogging through box after box to find a single certificate of completion for a summary adjudication motion, when the same information can be found in seconds in any review application.

“Searchable” features are the bedrock of being able to use any review application. Moreover, searchable fields of metadata or extracted text are the fuel necessary for any advanced analytics engine. Predictive coding, de-duplication, data clustering, and a host of other “search” features require the data to actually be searchable. The Arizona Rules of Civil Procedure should help ensure state court litigation does not have gamesmanship of producing parties stripping searchable features from ESI.

I commend the team who drafted the new Arizona Rules of Civil Procedure. I believe these rules will help parties once they become effective on January 1, 2017. Job well done.

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.