OBJECTIONS WHEN AND HOW RAISED TO OPPOSING COUNSEL’S DISCOVERY DEMANDS IN A SPECIFIC FORMAT

OBJECTIONS WHEN AND HOW RAISED TO OPPOSING COUNSEL’S DISCOVERY DEMANDS IN A SPECIFIC FORMAT

The format of discoverable material holds relevance when it is electronically stored information (ESI). The treatment of metadata is of basic concern. Metadata is described as “information that provides information about other data”. It describes things like the source of the information – who, when and how it was created, modifications to the information if any, etc. It may contain information that is visible to any viewer and also may contain any hidden information. At times, metadata may contain information that is privileged. In cases involving many parties, more money, voluminous data, it may be critical to prove an allegation or defense or to prove that the information has been spoliated. This can be effectuated through unchanged metadata. Materials provided in native-format also assist in this endeavor. Native format allows electronic evidence to be preserved without degradation.

The Federal Rules of Civil Procedure generally require the discoverable documents to be produced to the other party in the form in which it is ordinarily maintained by the producing party (“native format”) or in a usable form. To produce ESI in native format is to produce the information in the same electronic format in which it existed with the producing party.

Please refer the fig. herein provided for an overview of the discovery process.

Production of Electronically Stored Information If the litigating parties fail to mutually determine the format for production then, Rule 34(b)(2)(E) of the Federal Rules of Civil Procedure assists in the same. It states that unless otherwise stipulated or ordered by the court, the parties must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request. It further requires the parties to produce documents in the above stated form if the request does not specify a form for producing ESI. Further Rule 34(b)(2)(B)-(D) specifies that if any responding party objects to the ESI format requested, it is required to state an alternative format it intends to use. The Rule requires that if a responding party intends to object to the requests it must state its objections with specificity and the reasons for such objection. If, after the producing party has raised an objection to the format of ESI and the demanding party is not satisfied with the alternative ESI format suggested by the producing party, the parties must meet and confer under Rule 37(a)(2)(B) to try to resolve the matter before the demanding party files a motion to compel.

The Eastern District Of California in Morgan Hill Concerned Parents Association v.

California Department of Education illustrated that a party may waive its objections if it fails to timely and clearly object to a party’s demand that ESI be produced in a particular format..

Herein, the producing party objected to the party’s every request specifically but failed to object the part of the request which required it to produce the ESI in native format. The requesting party moved for motion to compel. The court granted the motion and ordered that the producing party produce all the 29,000 documents it produced in load format, again in native format.

It is therefore prudent and judicious to raise objections regarding requests of particular format of ESI clearly, with specificity and within the timeframe set forth in Rule 34(b)(2)(A) of the Federal rules of Civil Procedure.

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