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Tech Tip: Producing Electronic Documents: Complying with Federal Rule 34(b)

Tech Tip: Producing Electronic Documents: Complying with Federal Rule 34(b)

While the Federal Rules governing the production of documents were drafted with paper in mind, today’s “documents” consist almost exclusively of electronic information. Rule 34(b) of the Federal Rules of Civil Procedure (FRCP) expressly permits parties to seek discovery of these electronic documents and other “electronically stored information” or ESI and allows the requesting party to specify the form of production (such as “native” files). Otherwise, the FRCP provides little guidance on the format for production. Ideally counsel for the parties should reach agreement on the format for ESI during the meet and confer process contemplated under FRCP 16 and 26. This agreement should include:

• Form of production or file type, e.g., native, TIFF, or PDF. Of course, the form selected may need to be varied based upon the documents produced—particularly Excel or database files;
• Metadata. The parties should consider agreeing to a specific set of metadata fields to exchange with all productions, as well as a standardized load file to allow the parties to utilize databases and other review platforms; and
• Production Protocol. The parties should seek to agree on a protocol regarding Bates numbering, the application of optical character recognition (OCR) to allow for text searching, and the means of production (i.e., hard drive, FTP or other cloud-based delivery, etc.).

Absent agreement (or a specific request), the FRCP requires only that the documents be produced in a “reasonably usable format.” Although undefined by the Rules, courts have generally held that degrading the functionality of the original electronic document runs afoul of this requirement. In other words, if a document in its native format was electronically searchable, the production format should retain this functionality. Considering this guidance, we suggest the following best practices:

• Data Collection, Preservation and Production Procedures should achieve two primary objectives:
• maintain metadata integrity from collection through production; and
• capture and preserve data structure and custodial information when possible.
• Process, preserve and produce ESI in the order the originating operating system or email system stored it (or otherwise maintain load files containing the information).
• Maintain file correlations, commonly referred to as “Families,” throughout the E-Discovery life-cycle for all data containing them, such as email and attachments, compression files (ZIP), or files with embedded content.
• Produce documents in their native format where embedded information would be lost if converted. The most common example is an Excel spreadsheet.