Two ways to improve discovery productions is to clearly state the form of production in the discovery request and to have a meaningful meet and confer about producing discovery. Failing to do either can result in motion practice.
In this dispute, the requesting party claimed the electronically stored information (ESI) was produced without metadata and not labeled to correspond to the requests for production. The producing party claimed they had provided a detailed post-production index for the requesting party.
The request for production directed the producing party for ESI to be “printed out and provided, or produced in native electronic format.” Barker v. Insight Glob., LLC, No. 16-cv-07186-BLF (VKD), 2019 U.S. Dist. LEXIS 23724, at *7 (N.D. Cal. Feb. 13, 2019).
While the opinion is silent on what exactly was produced, the Court noted that the producing party did not object to the form of production. Moreover, the Court explained that, if a request for production of documents does not specify the form of production, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. Barker, at *8, citing Fed. R. Civ. P. 34(b)(2)(E)(ii). While there has been debate if a production of ESI must be labeled to correspond to discovery requests, the Court cited that documents must be produced as they are kept in the usual course of business or must organize and label them to correspond to the categories in the document request. Barker, at *7, citing Fed. R. Civ. P. 34(b)(2)(E)(i). The Court observed the producing party did not comply with those requirements, but did produce a post-production index for Rule 34(b) compliance.
The Court found that the parties failed to have a meet and confer about the form of production, which is specifically stated in Rule 26(f)(3)(C). The Court directed the parties to confer over the form of production and whether the production index remedied the requesting party’s objections. The Court drove home this message with, “The parties are strongly encouraged to reach a practical resolution to this issue.” Barker, at *8.
Bow Tie Thoughts
Form of production disputes really should no longer be happening, absent exotic data or privilege matters requiring redaction. There might be other situations where disputes can happen, but this really should be a rare event. Virtually all eDiscovery review applications have production tools that allow the producing party to select the form of production for native, TIFFs, or PDFs, with additional options for how to handle redactions, and ESI such as spreadsheets, presentations, and media files.
One option for parties to consider is standard language in their requests for production that are tailored to the review application they use. For example, statements such as the following could be customized based on the needs of the case and technology being used for review:
All ESI shall be produced in native file format with associated substantive and embedded metadata, Extracted Text, and a Concordance load file, pursuant to Federal Rule of Civil Procedure 34(b)(1)(C). Any ESI that has to be converted to a static image for purposes of redaction of privileged content shall be produced as a PORTABLE DOCUMENT FILE (PDF), with associated Optical Character Recognition, and Concordance load file.
Instructions for how to handle privileged information and privilege logs can also be included to reduce possible arguments later in the case. For example:
If any ESI is converted to a static image for redaction, your privilege log should explain the reason for the redaction; such as the information is protected by a privilege or protected by statute, or such as personal identifiable information.
If any DOCUMENT or ESI is withheld from production under a claim of privilege or other exemption from discovery, you must specifically state what information is being withheld pursuant to Federal Rule of Civil Procedure Rule 34(b)(2)(C). Your privilege log should state the title and nature of the DOCUMENT and furnish a list signed by the attorney of record giving the following information with respect to each DOCUMENT withheld…
While these options can help with productions, it is critical to discuss the form of production and privilege during the Rule 26(f) meet and confer. While there are legitimate reasons to have a discovery dispute, the meet and confer is an opportunity to avoid conflict over technical issues, so the attorneys can focus on the merits of the case, not the form of production and production logs.