eDiscovery Daily Blog

• May 29, 2014

Last week, we discussed the upcoming Georgetown E-Discovery Training Academy, which will be held starting this Sunday and mentioned in Craig Ball’s excellent blog, Ball in Your Court.  His latest post offers a very comprehensive guide to forms of production that covers all aspects of forms of production from the different types of forms to how to request electronically stored information (ESI) from opposing counsel.

The Lawyer’s Guide to Forms of Production, described by Craig as a “public comment” and “beta” version, “explains the significance of forms of production and lays out options to guide the reader in making sensible selections. It seeks to help lawyers eschew the wasteful and outmoded practice of downgrading digital information to paper-like forms and, instead, embrace forms that function—that is, forms of production that preserve the integrity, efficiency and functionality of digital evidence.”

It’s a 46 page Guide, with another 20 pages of attachments, and covers numerous topics, including:

• Growing Tension between parties striving to receive productions in useful formats and producing parties seeking to “downgrade” the production format to paper-like images;
• Options for Forms of Production including Paper, Images, Native, Near-Native (such as enterprise e-mail, databases and social networking content which can’t be produced as-is) and Hosted Production (more frequently, parties turn over access to ESI in a hosted application, typically cloud-based);
• Federal Rules handling of forms of production, including Rule 34(b)(1)(C) of the Federal Rules of Civil Procedure which allows a requesting party to “specify the form or forms in which electronically stored information is to be produced”;
• Learning the Language of Forms where Craig breaks down a fictional example of a typical production proposal from opposing counsel and the pitfalls of the proposed formats;
• Load Files, what they are, different format examples, and how they are used;
• The Case against Native Format and how each component of the case is debunked;
• The Case against Imaged Production and at least half a dozen “needless” expenses associated with it.

Craig also covers best practices for crafting production requests that are modern and clear and “cut the crap” of “including, but not limited to” and “any and all” that “don’t add clarity” and are “lightning rods for objection”.  He addresses Bates numbers, redaction and “exemplar” production protocols (in Appendices 2 and 3).  And, many other topics as well!  It’s a very comprehensive guide that covers introductory and advanced topics alike to help lawyers develop a much better understanding of how ESI is stored, organized and should be requested.

You can download a copy of the guide in PDF format here.  It will be interesting to see what feedback Craig gets on his “beta” version.

So, what do you think? Have you dealt with forms of production disputes with opposing counsel?  If so, how did you resolve them?  Please share any comments you might have or if you’d like to know more about a particular topic.

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