Definitions Matter in Electronic Discovery

Court decisions focusing on the format of production for electronically stored information (ESI) have typically taken a hard line on inartfully crafted discovery requests. The Federal Rules of Civil Procedure, as amended in 2006, permit a party to request ESI, and gives the requesting party the option to choose format (for example, native data format, .tiff, or even .pdf files). If the party requesting ESI fails to specify form and format of production, the producing party (and it could be any party in a lawsuit) is then given the option to produce in whatever format it prefers, so long as what is produced is "reasonably usable." 

Courts have held that a failure to articulate format of production in an initial request will waive the right to request native format data later on. Why is this important? Well, a searchable tiff file might be "reasoanbly usable" but will not carry with it file metadata that may be as important, or even more important than the document itself. This permits a party to not produce metadata such as digital signature information, creation dates, author(s), etc. that might be critical to either supporting, or challenging authenticity and admissibility of digital evidence. Most important, courts will generally not permit a discovery request "do-over" 

So, lawyers (and IT/Info-Sec) have to be careful to understand both what to request, and how to frame that request. Kind of like good coding. 

That said, at least one court appears to be taking a somewhat more lenient approach: 

In the recent case of Goodbys Creek, LLC v. Arch Ins. Co., 2008 WL 4279693 (M.D.Fla. 2008), Magistrate Judge Snyder, while recognizing that a failure to ask for native data format may waive a later request for same, nevertheless accepted the assertion that a production of a tiff format file made searching them "much more difficult" and compelled defendant to (and apparently in the alternative) to:

"provide any documents previously supplied as TIFF images in their native data format, provide any documents in another comparably searchable format, or supply Goodbys with software for searching the TIFF images."

This decision represents a departure from recent decisional authority that (1) holds a requesting party to its first request language, and in the absence of a specific format request, (2) permits a producing party to provide only "reasonably usable" ESI. The requesting party here may not ultimately receive native data format, but it will receive more than a "picture" of documents. 

SWT

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