Orange Legal Technologies provides you with the ability to deliver or make available to another party documents and/or ESI deemed responsive to a discovery request. These documents and/or ESI can be provided in a variety of formats to include:
- Native Format
- Near Native Format
- Near Paper Format
- Paper Format
This multiple-format production flexibility ensures that you meet the requirements of each production request in a timely and cost effective manner.
To determine how we can help you with your specific production requests, contact us and we can immediately help you translate your requests into action.
What Is “Production”?
As defined by The Sedona Conference, “Production”, in the context of electronic discovery, is “the process of delivering to another party, or making available for that party’s review, documents and/or ESI deemed responsive to a discovery request”.[i] In even simpler terms, “Production” can be understood as the “delivery of data or information in response to an interrogatory, subpoena or discovery order or a similar legal process.”[ii]
What Is One Of The Primary Drivers Of ESI Production?
One of the primary drivers of ESI production is the legal requirement presented in the Federal Rules of Civil Procedure (FRCP). Within the FRCP, Rule 34 (Production of Documents, Electronically Stored Information, and Things and Entry Upon Land for Inspection and Other Purposes) highlights the fact that electronically stored information (ESI) must be produced in forms that are reasonably usable. Requests for production may specify desired data formats for production. If no specification is made, parties must produce the ESI in the format in which it is ordinarily maintained, or in a reasonably usable form (ie, if ordinarily kept in a proprietary format.) Parties do not have to produce ESI in more than one format.
The full content of FRCP Rule 34 is provided below:
Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on the requestor’s behalf, to inspect, copy, test, or sample any designated documents or electronically stored information — including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained — translated, if necessary, by the respondent into reasonably usable form, or to inspect, copy, test, or sample any designated tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served; or (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b).
The request shall set forth, either by individual item or by category, the items to be inspected, and describe each with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The request may specify the form or forms in which electronically stored information is to be produced. Without leave of court or written stipulation, a request may not be served before the time specified in Rule 26(d).
The party upon whom the request is served shall serve a written response within 30 days after the service of the request. A shorter or longer time may be directed by the court or, in the absence of such an order, agreed to in writing by the parties, subject to Rule 29. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, including an objection to the requested form or forms for producing electronically stored information, stating the reasons for the objection. If objection is made to part of an item or category, the part shall be specified and inspection permitted of the remaining parts. If objection is made to the requested form or forms for producing electronically stored information — or if no form was specified in the request — the responding party must state the form or forms it intends to use. The party submitting the request may move for an order under Rule 37(a) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested.
Unless the parties otherwise agree, or the court otherwise orders:
(i) a party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request;
(ii) if a request does not specify the form or forms for producing electronically stored information, a responding 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; and
(iii) a party need not produce the same electronically stored information in more than one form.
What Are The Typical Production Formats?
In determining the appropriate forms of production in a case, requesting parties and counsel should consider: (a) the forms most likely to provide the information needed to establish the relevant facts of the case; (b) the need for metadata to organize and search the information produced; (c) whether the information sought is reasonably accessible in the forms requested; and (d) the requesting party’s own ability to effectively manage and use the information in the forms requested.[iii] Once the requirements for the production, production formats can then be considered. Typically, ESI production formats are classified as native, near-native, near-paper and paper.[iv]
Native File Formats
Files produced in the format they were created and maintained are known as native production. In a native production, MS Word documents are produced as .doc files, MS Excel files are produced as .xls files, and Adobe files are produced as .pdf files, etc. Native format is often recommended for files that were not created for printing such as spreadsheets and small databases. For some file types the native format may be the only way to adequately produce the documents.
Some files, including most e-mail, cannot be reviewed for production and/or produced without some form of conversion. Most e-mail files must be extracted and converted into individual files for document review and production. As a result, the original format is altered and they are no long in native format. There is no standard format for near-native file productions. Files are typically converted to a structured text format such as .html or xml. These formats do not require special software for viewing. Other common e-mail formats include .msg and .eml.
ESI can also be produced in a near paper format. Rendering an image is the process of converting ESI or scanning paper into a non-editable digital file. During this process a “picture” is taken of the file as it exists or would exist in paper format. Based on the print settings in the document, the printer or the computer, data can be altered or missing from the image. Expertise in the field of electronic discovery and image rendering tools are necessary to minimize this risk.
A paper production is just what it sounds like: paper is produced as paper or ESI is printed to paper and the paper is produced. As with converting to image, printing documents to paper can result in missed or altered data. When producing ESI in paper, it is recommended to utilize someone with expertise in the field of e-discovery and image rendering tools to minimize this risk during the printing or image rendering process.
When Should Production Planning Begin?
Federal Rule of Civil Procedure 26(f ) calls for an early discussion of form of production issues. Rule 34 sets forth a more detailed explanation of the ways in which parties should request and respond to requests seeking production or inspection of electronically stored information.
At the outset, parties seeking discovery should have sufficient technical knowledge of production options so that they can make an educated and reasonable request. These options should be discussed at the Rule 26(f ) conference and included in any Rule 34(a) requests. Likewise, responding parties should be prepared to address form of production issues at the Rule 26(f ) conference.
With respect to requests and responses, the revised Rule 34(b) provides that a request may specify the form or forms in which electronically stored information is to be produced. If objection is made to the requested form or forms for producing electronically stored information, or if no form was specified in the request, the responding party must state the form or forms it intends to use.
If a request does not specify the form or forms for producing electronically stored information, and absent agreement of the parties, a responding 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 unless otherwise ordered by the court. A party need not produce the same electronically stored information in more than one form. [v]
To learn more, contact us.
[i] The Sedona Conference Glossary, Second Edition. The Sedona Conference, December 2007.
[ii] RenewData Glossary, October 2005.
[iii] The Sedona Principles Addressing Electronic Discovery Production, The Sedona Conference, June 2007.
[iv] The Electronic Discovery Reference Model (EDRM), March 2008.
[v] The Sedona Principles Addressing Electronic Discovery Production, The Sedona Conference, June 2007.