The issue of production format in eDiscovery has long been discussed, argued and downright misunderstood. Historically, attorneys produced documents in paper form or electronically in TIFF or Adobe® PDF format. Even documents that originated electronically were often either printed and re-scanned or batch-converted to TIFF or PDF. The December 1, 2006 amendments to the Federal Rules of Civil Procedure (FRCP) – specifically rule 34(b) – made the default obligation to produce a document “in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable” unless the requesting party – or failing that, the producing party – specifies a different format. Does this demand that the producing party must deliver all documents in their original, native format (e.g., Microsoft Word or Excel)?
The knee-jerk reaction of some has been to demand native production without really understanding why the native format is or is not necessary for that case, and without knowing whether or not they have the software necessary to actually access all of the data they are demanding.
“Too often one or both sides do not understand the software technology involved.”
For example, in Armor Screen Corporation v. Storm Catcher, Inc., 2008 WL 5262707 (S.D.Fla. Dec. 17, 2008), defendants requested native file production, but were then unable to read files with a .SAV extension. The defendants demanded the plaintiffs then produce hard-copy printouts of the SAV files. Magistrate Judge Ann E. Vitunac refused to compel the plaintiff to grant the defendant’s request because SAV files, openable by a number of “statistical computer packages,” would in fact qualify as a “reasonably accessible format.” Too often one or both sides do not understand the software technology involved. This makes agreeing on a production format difficult and frustrating and often requires the court to make the ultimate determination
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By: Christine Musil