Six Articles on Electronic - Craig Ball

Craig Ball © 2007
Rules of Thumb for Forms of ESI Production
By Craig Ball
[Originally published in Law Technology News, July 2006]
Come December 2006, amended Rule 34(b) of the Federal Rules of Civil Procedure has a gift
for requesting parties both naughty and nice. It accords them the right to specify the form or
forms of production for electronically stored information (ESI) sought in discovery. Though
December may seem remote in these dog days of July, litigators better start making their lists
and checking them twice to insure that, come December, they’ll know what forms are best
suited to the most common types of ESI.
Last month, I covered the five principal forms ESI can take:
1. Hard copies;
2. Paper-like images of data in, e.g., TIFF or PDF;
3. Data exported to “reasonably usable” electronic formats like Access databases or load
files;
4. Native data; and
5. Hosted data.
This month, we’ll look at considerations in selecting a form of production for the kinds of data
most often seen in e-discovery.
Word Processed Documents
In small productions (e.g., less than 5,000 pages), paper and paper-like forms (.PDF and .TIFF)
remain viable. However, because amended Rule 34(b) contemplates that producing parties not
remove or significantly degrade the searchability of ESI, both parties must agree to use printouts
and “naked” image files in lieu of electronically searchable forms. When the volume dictates the
need for electronic searchability, image formats are inadequate unless they include a
searchable data layer or load file; otherwise, hosted or native production (e.g., .DOC, .WPD,
.RTF) are the best approaches. Pitfalls in native production include embedded macros and auto
date features that alter the document when opened in its native application. Moreover, word
processor files can change their appearance and pagination depending upon the fonts installed
on, or the printer attached to, the computer used to view the file. Be careful referring to
particular pages or paragraphs because the version you see may format differently from the
original.
Consider whether system and file metadata are important to the issues in your case. If so,
require that original metadata be preserved and a spreadsheet or other log of the original
system metadata be produced along with the files.
E-Mail
Again, very small productions may be managed using paper or images if the parties agree on
those forms, but as volume grows, only electronically searchable formats suffice. These can
take the form of individual e-mails exported to a generic e-mail format (.EML or .MSG files),
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