Recent electronic discovery decisions seek to teach practical rules and lessons. A litigator must first think through the reasons why she is demanding that specific materials need to be produced with “metadata” in “native” format1 and, if “key word” searching for electronically stored information (ESI) is anticipated, she needs to work with the client to carefully craft “search terms” not to be “overbroad” so that they will result in the appropriate production of relevant ESI.
Afterwards, the litigator needs to confer with her adversary to determine if the ESI sought can be produced in “native” format or in another preferred format and whether there can be agreement on “search terms.” Then, the document request needs to specifically demand production of ESI in the precise electronic form sought. In the event the litigator seeks database information or other ESI that may not be standard, she or the client needs to possess the necessary hardware and software, which may be proprietary, to be able to review such ESI.
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