Craig Ball on Forms of Production

Here's a summary a section of Craig Ball's Electronic Discovery Workbook, on '"Forms that Function".

A. Form

- ESI should be produced in forms that function - that preserve the integrity, efficiency, and functionality of digital evidence.

B. Federal Rules of Civil Procedure

1. Fed. R. Civ. P. 26(f)(3)(C) requires that the discovery plan address the form in which ESI is to be produced.

2. Fed. R. Civ. P. 34(b)(1)(C) permits requesting parties to specify the form of production.

3. Fed. R. Civ. P. 34(b)(2)(D) allows the producing party to object to the requested form.

4. Fed. R. Civ. P. 37(a)(1) if there is a dispute the parties must meet and confer to reach a resolution.

5. Fed. R. Civ. P. 34(b)(2)(E)(ii) requires parties to produce ESI in the form in which it is ordinarily maintained.

6. If the parties can't agree, the requesting party has to file a motion to compel.

C. Native Files

1. Multiple forms should be used in most productions: images; native; near native; or hosted. Near native productions are useful for enterprise email, databases and social media content.

2. Ball advises against converting native files to TIFF images because:

a. the expense for conversion and for load files

b. spreadsheets cannot be easily converted into images

c. TIFF images tend to be 5-40 times as large

d. the images can't be de-duped.

e. a request for re-production with natives may be made.

3. Ball rejects these four excuses for refusing to produce native files:

a. hard to Bates label.

b. evidence may be altered.

c. native productions require broader review.

d. native files can't be redacted.

D. Form

1. Don't ask for documents - ask for information in a useful and complete form. 'Information items'.

2. Specify a format, not just native files. E.g. .xlsx; pptx.

3. For email, ask, "Can the form produced be imported into common e-mail client or server applications?"

4. Specify the load file format - include:

a. hash values

b. UTC offset

c. deduplicated instances

d. email folder path

e. redaction flags

f. embedded content flag.

5. Include logical unitization data

E. De-duplication and Redaction

1. Vertically de-dupe by custodian.

2. Don't perform near de-duplication.

3. Redactions should not impair the ability to search through non-redacted content.