It is a good practice to state the form of production of production in the request for production. Consider the following words of wisdom:
Both Federal Rule of Civil Procedure 26(f) and this Court’s January 16, 2018 Order Setting Rule 16 Conference (ECF No. 9) required the parties discuss during their discovery conference at the outset of the case any issues relating to discovery of ESI, including the form or forms in which it should be produced. See Fed. R. Civ. P. 26(f)(3)(C); ECF no. 9 at 2. The Court also routinely cautions parties during Rule 16 conferences that they must specifically discuss the format for ESI production before requesting such production and that failure to do so may result in the Court either denying or requiring cost-sharing before ordering a second production of ESI in a different format.
Cody v. City of St. Louis, No. 4:17-CV-2707, 2021 U.S. Dist. LEXIS 112330, at *17-18 (E.D. Mo. June 16, 2021).
The default rule if the form of production is not stated is to produce the ESI in the “form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Fed. R. Civ. P. Rule 34(b)(2)(E)(ii). Moreover, parties cannot degrade searchable features of ESI. See, Mitsui O.S.K. Lines, Ltd. v. Seamaster Logistics, Inc., 2011 U.S. Dist. LEXIS 117922 (N.D. Cal. Oct. 12, 2011).
The way ESI is “ordinarily maintained” is native file format. There might be some odd example where this is not the case, but that is the exception and not the norm.
The safest way to reduce the chances of a fight over a production that is not in native format, is to state the form of production in the discovery request. Many parties go further and state the form for static images if redactions are needed on privileged information, which is usually TIFF or PDF. There are a large number who also state the type of load files they want their requests as well. Will taking all of these steps eliminate the risk of motion practice? No, but it can reduce it, and put yourself in a stronger position if there is a dispute.