Now That Everything Is Collected, What Manner and Form to Produce It?

All electronically stored information responsive to discovery demands has been hunted down. Now what?

Under Rules 202.12(c)(3) and 202.70(g) (Rule 8) of the Uniform Civil Rules for the Supreme Court and County Courts, counsel were to have discussed issues concerning ESI before and/or at the preliminary conference, and to have agreed upon, among other things, "the scope, extent and form of production" and "disclosure of the programs and manner in which the data is maintained."[FOOTNOTE 1] However, in cases where counsel have not agreed on ESI issues, courts are compelled to fill the void, and the decisions are often not what was expected by the parties and counsel.

As recently as 2009, a New York state court decision noted that "to date," the law with regard to electronic discovery had not focused on the "manner" by which ESI is produced,[FOOTNOTE 2] and federal courts have taken the lead.[FOOTNOTE 3]

As Judge Shira Scheindlin stated in her recent decision in National Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency, "if no agreement is reached [among counsel], the court must determine the appropriate form of production, taking into account the principles of proportionality and considering both the needs of the requesting party and the burden imposed on the producing party."[FOOTNOTE 4] While the above statement was made in the context of a request for ESI under the federal Freedom of Information Act, this principle aptly applies to civil litigation in state courts as well.

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Source: law.com
By: Mark A. Berman, Anne D. Taback and Aaron E. Zerykier