Vendor Voice: The Much Overlooked Importance of ESI Form of Production

In almost all litigation, substantial time, effort and energy is spent crafting document requests. For the recipient of those requests, the cost for data collection, processing and review can be overwhelming. For both parties, the desired outcome of this process is the production set. So, if the documents produced are the ultimate goal, why are some attorneys overlooking their right to demand a properly formatted production set?

Federal Rule of Civil Procedure 34(b) does not specify any proscribed form of production for electronically stored information other than requiring that it be produced in a format which is “reasonably useable.” Fed. R. Civ. Pro. 34(b)(2)(E)(ii). Instead, it grants the requesting party broad leeway to specify the form of production. Id. These concepts are re-iterated in Rule 45 with respect to subpoenas directed at third parties. Fed. R. Civ. Pro. 45(e)(1)(B).

More often than not, e-discovery-savvy attorneys craft ESI protocols that carefully set forth the form of production by detailing with specificity exactly how ESI is to be produced by the opposing party. From load file formats to metadata inclusions, databases, native files and privilege logs—the form of production becomes the cornerstone of a lengthy document production request.

In other scenarios, a requesting party may fail completely to specify a form of production, and in turn gets stuck with a “useable” but deficient form of production—typically in the form of documents combined as a single PDF (or similar image) without any associated searchable text or metadata. Such productions leave the requesting party in the difficult position of either incurring additional expense to convert that data (via scanning, unitizing, OCR, etc.) into a more useable format, or reviewing in an arcane manner—such as via Adobe Acrobat. For those attorneys content to review produced documents from a CD on their desktop, it’s time recognize the importance and impact that e-discovery practices can have on your case and, as importantly, your time and efficiency.

Every lawyer that requests documents should have a standard ESI protocol from which to craft a customized form of production best suited for their case so as to reduce the chance of receiving data in a substandard format. At a minimum, attorneys should be specifying the form of production in their document request (or subpoena), and include the following provisions with appropriate specificity:

A standard load file format, typically expressed as a .DAT file, containing
1) An image of the document.
2) Extracted text or OCR from the native form of that document.
3) Metadata associated with the original document.

Metadata should include the following fields:
• Beginning and ending Bates numbers for each document (BegDoc/EndDoc).
• Beginning and ending Bates numbers for any attachments or family members associated with that document (BegAttach/EndAttach).
• The custodian, filename and file extension of the document.
• The date the document was created and modified.
• For e-mail, include the to, from, cc, bcc, date sent, time sent, date received and time received and subject.
• For all documents, you may want the hash value created to identify duplicates, if produced, and to the extent duplicates are suppressed in production, the names of the custodians associated with the suppressed duplicates.