Electronic Discovery — Form of Production

The December 2006 electronic discovery amendments send mixed messages to recipients of document requests and subpoenas. Rule 34(b) permits, but does not require, the requesting party to specify the format in which it wishes to receive electronically stored information ("ESI"). The responding party may object to the requested format. If it does so, the responder is required by the Rule to identify the format in which it intends to produce the ESI. Rule 34(b)(ii) further provides that, if the request does not specify the format in which ESI should be producted, "a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable." Finally, Rule 34(b)(iii) provides that a responder need not produce the same ESI in more than one form."

Rule 34 requests in practice generally seek all responsive documents and ESI on particular topics, without distinction, in an effort to be comprehensive. Even if the request specifies the format for ESI (as it now should), production of hard copies, to the extent they exist, would seem to obviate the need to produce underlying ESI under Rule 34(b)(iii). Moreover, hard copies would appear to be "reasonably usable" within Rule 34(b)(ii), even if they are generated for the purpose of production because hard copies did not exist at the time the Rule 34 request was made.

Yet the Committee Note to Rule 34(b) provides that: "If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature." This observation would appear to be incompatible with the ability to produce hard copies in response to a request for ESI and to require that all information maintained in Word, WordPerfect, Outlook and other searchable formats must be produced in a searchable format (e.g., searchable PDFs). It will take case law to sort through this arguable dissonance between the Note and the text of the Rule.

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