eDiscovery Daily Blog
The Ongoing Battle Over How ESI is Produced: eDiscovery Trends, Part Four
Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems. He has also been a great addition to our webinar program, participating with me on several recent webinars. Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Mobile Collection: It’s Not Just for iPhones Anymore. Now, Tom has written another terrific overview regarding mobile device collection titled The Ongoing Battle Over How ESI is Produced that we’re happy to share on the eDiscovery Daily blog. Enjoy! – Doug
Tom’s overview is split into four parts, so we’ll cover each part separately. The first part was last Tuesday, the second part was last Wednesday and the third part was last Friday, here’s the fourth and final part.
So, is all this controversy over ESI format legitimate? Or is it, in the words of Bob Eisenberg,
“ … a cocktail of the dubious, bogus and unfounded. A stew of junk or half-baked technical science and disingenuous advocacy, seeking to rationalize the unreasonable, while tilting that proverbial playing field as far as possible in support of the defense …”.
You make the call.
Regardless, we’re certainly seeing more cases where form of production is figuring prominently in court rulings. Here are some cases covered by eDiscovery Daily in just the past couple of years regarding form of production disputes, some which granted requests for native files and metadata, others which did not:
- Washington v. GEO Group, Inc., No. 17-5806 RJB (W.D. Wash. July 1, 2019)
- Lee v. Trees, Inc., No. 3:15-cv-0165-AC (D. Or. Nov. 6, 2017)
- Lawrence v. City of New York, et al., No. 15cv8947 (S.D.N.Y. July 27, 2018)
- Baker v. Santa Clara Univ., No. 17-cv-02213-EJD (VKD) (N.D. Cal. Jul. 31, 2018)
- IN RE SYNGENTA AG MIR 162 CORN LITIGATION, MDL 2591, No. 16-2788-JWL (D. Kan. Sept. 25, 2018)
- Metlife Inv’rs. USA Ins. Co. v. Lindsey, No. 2:16-CV-97 (N.D. Ind. Oct. 25, 2018)
- Morgan Hill Concerned Parents Assoc. v. California Dept. of Education, No. 2:11-cv-3471 KJM AC (E.D. Cal. Feb. 2, 2017)
- In Re State Farm Lloyds, Relator, Nos. 15-0903, 15-0905 (Tex. Sup. Ct. May 26, 2017)
Finally, there is one terrific resource regarding form of production that everyone should read and it’s (once again) from renowned eDiscovery expert Craig Ball. Craig’s Lawyer’s Guide to Forms of Production discusses all of the format options available to attorneys, the pros and cons of each, how to address considerations such as Bates numbers and redactions, and it even includes a sample Request for Production to help guide attorneys on requesting ESI. Check it out!
So, what do you think? Do you prefer image-based productions or native file productions? As always, please share any comments you might have or if you’d like to know more about a particular topic.
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