Producing Electronically Stored Information

Saturday, December 1, 2007 - 01:00

As technology advances, the need for discovery of electronic communications and information increases and raises questions concerning the proper form of production for electronically stored information (ESI). The December 2006 amendments to the Federal Rules of Civil Procedure (FRCP) were designed to facilitate early communication regarding the production of ESI and to allow litigants to request specific production formats. Litigants should be aware of the various forms of production available, the issues that have arisen, and the cost and practicality of utilizing those forms.

Electronic Production Formats

Discovery disputes over form of production have quickly evolved from the "paper versus electronic" dispute to a more complex disagreement about the precise form of electronic production. Generally, ESI can be produced electronically in "native" format, as image files (usually PDF or TIFF files), or via the internet as HTML renderings viewable through a browser.

In native format production, the producing party provides duplicates of the actual data files, which includes the file's underlying data, sometimes referred to as "metadata." Metadata can contain, among other things, information detailing the history, tracking, and management of an electronic document. Many programs store this type of information which can play a pivotal evidentiary role. The availability of metadata has already fueled disputes over the production of ESI because its accessibility can be determined by what form of production is used. See Williams v. Sprint/United Mgmt. Co., No. 03-2200, 2007 U.S. Dist. LEXIS 5477, *1 (D. Kan. Jan. 23, 2007). The Report of the Civil Rules Advisory Committee supports the contention that requests for metadata should be conditioned upon evidence of need or sharing of costs. See also Kentucky Speedway v. Nat'l Ass'n of Stock Car Auto Racing, Inc., No. 05-138, 2006 U.S. Dist. LEXIS 92028, *1, *6 (E.D. Ky. Dec. 18, 2006) (underlying data must be produced if it will assist the requesting party in electronically searching the files).

PDF and TIFF files are digital snapshots of electronic documents. While a PDF or TIFF file replicates a document's image, parties receiving documents in this form have no access to the accompanying metadata, unless the producing party uses specific software to capture the information and attach it to the image files. PDF and TIFF files are searchable but only after applying optical character recognition software.

Many vendors now offer the production of electronic files in on-line repositories. Utilizing on-line repositories and web-based tools, the documents are viewable and searchable on-line. Producing documents via the Internet can give the requesting party more searching capability than PDF or TIFF files capability.

Amendments To The FRCP

A key finding made by the Advisory Committee considering the 2006 FRCP amendments was that problems regarding the production of ESI can be resolved if parties meet and confer early in the litigation process.1Amendments to FRCP 26(f) implement this finding by requiring the parties to meet and confer to discuss "any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced." Amendments to FRCP 16(b) require that the results of the meet and confer, mandated by FRCP 26(f), be reported to the Judge. The purpose of these amendments is to encourage parties to agree to production formats early in the litigation process.

FRCP 34(a) & (b)

Although parties have been exchanging ESI for years, the amendments to FRCP 34(a) formally recognize ESI as a category of discoverable information. The amendments change the procedure for requesting ESI, involving both the requesting party and the producing party in the determination of what form of production will be utilized.

Although it is not required to do so, the requesting party is permitted to indicate the form or forms in which it wants ESI produced. Committee Note, Fed. R. Civ. P. 34(b). If the requesting party does not choose a form of production or if the producing party objects to the chosen form, the producing party must state in its written response to the production request what form of production it plans to utilize. The producing party is required to identify the intended form of production before production actually occurs. If the producing party fails to identify the form of production that it is going to use, it bears the risk that the requesting party will be able to show that the form utilized is not reasonably usable. If the requesting party is successful in showing that the form utilized is not reasonably usable, the producing party may have to reproduce the documents in an alternative form.

When the form of production is not specified in the production request or identified by agreement or court order, the producing "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." Fed. R. Civ. P. 34(b)(ii).

"Ordinarily Maintained"

The term "ordinarily maintained" suggests that ESI should be produced in native format. However, in some cases ESI may be ordinarily maintained in a manner that is not reasonably usable by another party. Committee Note, Fed. R. Civ. P. 34(b).

In Williams v. Sprint/United Mgmt. Co. , 230 F.R.D. 640 (D. Kan 2005), the plaintiff requested the production of spreadsheets in native format in order to view the contents of the cells that may have been cut off when viewed on a PDF file. Id. at 642-43. The defendants provided the files in native format but scrubbed the spreadsheets to remove metadata without producing a log of what information was scrubbed. Id. at 645-46. Although the court did not sanction the defendants for scrubbing the data, it ruled in favor of the plaintiffs. The court held that when a party is ordered to produce ESI as ordinarily maintained, the producing party must produce the ESI with metadata intact "unless that party timely objects to production of metadata, the parties agree that the metadata should not be produced, or the producing party requests a protective order." Id. at 652. In Treppel v. Biovail Corp., 233 F.R.D. 363, 374 (S.D.N.Y. 2006), the court ordered the defendant to search and produce relevant ESI in native format. The court noted that the defendant had failed to provide a substantive basis for objecting to production in native format. Id. ; See also Nova Measuring Instruments Ltd. v. Nanometrics, Inc., 417 F. Supp. 2d 1121 (N.D. Cal. 2006) (the court granted plaintiff's motion to compel production of documents in native format including original metadata) and In re Verisign, Inc. Securities Litig., No. 02-02270, 2004 U.S. Dist. LEXIS 22467, *1 (N.D. Cal. Mar. 10, 2004) (the court denied the defendant's objections to the court's discovery order requiring the production of responsive documents in electronic form including metadata).

Not all requests for native format production will be granted. In order to obtain production in native format the requesting party has to provide adequate reasons why such production is necessary. In Wyeth v. Impax Lab. Co., No. 06-222, 2006 WL 3091331, *1 (D. Del. Oct. 26, 2006), defendant Impax moved to compel Wyeth to produce documents in native format, complete with metadata. Wyeth contended that TIFF production was adequate because Impax did not show a need for the metadata and producing the documents in native format would be overly burdensome. Id. The court held that since the parties never agreed to a specific form of production and Impax failed to "demonstrate a particularized need for the metadata" TIFF production was adequate. Id. at *2.

While the decisions in Williams and other cases required defendants to produce documents in native format, it is important to look at those cases in context. Specifically, in Williams the completeness of the documents was an important issue. The plaintiffs were unable to fully read the documents because the text of many of the spreadsheet cells were cut off from view. As evidenced in Wyeth , in situations where metadata is irrelevant and the requesting party fails to provide adequate reasons for compelling production in native format courts will not require it.

"Reasonably Usable"

If documents are not produced in the form in which they are ordinarily maintained, they must be produced in a reasonably usable form. Fed. R. Civ. P. 34(b)(ii). The phrase reasonably usable has been interpreted to mean an electronically searchable format.

The Southern District of New York held that a defendant was not obligated to provide more than a searchable CD-ROM where the defendant had already produced over 200,000 e-mails in a text-searchable format. Zakre v. Norddeutsche Landesbank Girozentrale , No. 03-0257, 2004 U.S. Dist. LEXIS 6026, *1, *3 (S.D.N.Y. Apr. 9, 2004). Similarly, the District Court for the District of Columbia held that in situations where information produced on CD-ROM is both readable and searchable the producing party has no further obligation. In re Lorazepam & Clorazepate Antitrust Litig., 300 F. Supp. 2d 43, 47 (D.D.C. 2004).

Although the producing party is afforded the option of producing documents in a reasonably usable form, that does not always allow the producing party to convert the ESI from the form in which it is ordinarily maintained into another form. When "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." Committee Note , Fed. R. Civ. P. 34(b); See In Re Payment Card Interchange Fee, No. 05-1720, 2007 U.S. Dist. LEXIS 2650, *1, *14 (E.D.N.Y. Jan. 12, 2007).

Importance Of Electronic Discovery Agreements

The FRCP amendments require parties to meet and confer regarding electronic discovery early in the litigation process in hopes that the parties can agree to the scope and form of electronic production. A producing party who chooses a format without the other side's consent runs the risk that the court will order reproduction. Cf. In Re Payment Card Interchange Fee, 2007 U.S. Dist. LEXIS 2650 at *15-16 (court denies defendant's request for reproduction of documents with metadata because it would be overly burdensome and defendant accepted documents without metadata without objection) with 3M Co. v. Kanbar, No. 06-01225, 2007 U.S. Dist. LEXIS 45232, *1, *9 (N.D. Cal. June 14, 2007) (court orders reproduction of ESI previously produced in hard copy in electronic format). When deciding form of production disputes the court is not limited to the format choices proposed by the parties. Committee Note , Fed. R. Civ. P. 34(b).

Conclusion

The FRCP amendments encourage parties to settle discovery issues on their own, applying the "ordinarily maintained" and "reasonably usable" standards only when the parties are unable to agree. Parties must address the production of ESI early in the litigation process to avoid subsequent discovery disputes and the risk that information will have to be reproduced.

John P. Scordo is a Partner in the New Jersey office of Day Pitney LLP. Mr. Scordo's practice focuses on insurance and commercial litigation in the state and federal courts. He regularly counsels clients on the uses of electronic discovery. Kristine Russo Begley is an Associate in Day Pitney's Intellectual Property Group.

Please email the authors at jscordo@daypitney.com or kbegley@daypitney.com with questions about this article.