eDiscovery Daily Blog

The Ongoing Battle Over How ESI is Produced: eDiscovery Trends

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.  Here’s the first part.


Legal disputes in the civil arena typically succeed or fail these days as a result of the practice of eDiscovery.  FRCP Rule 26(f), which provides for a conference of the parties and planning for discovery. This conference was designed to speed up the discovery process but more and more it has become bogged down with disputes over one particular section in that rule, (3)(C), which states that the plan shall contain “any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced;”.

One plaintiffs side commentator, Atty Robert Eisenberg, has been particularly strident in his criticism of the arguments on the forms of production.  Bob is well known in the eDiscovery community as a consultant and educator having been instrumental in forming the both the Georgetown Advanced Ediscovery Institute and the  Ediscovery Training Academy as well as currently being the Program Director at the Cleveland-Marshall College of Law’s (CMLaw) eDiscovery Professional Certificate Program.

Bob stated in an article from last year on my TechnoGumbo blog that defense firms

“ … in virtually every litigation (no matter how varied the types of ESI; no matter how limiting to plaintiffs) [strive] to assure that records produced in discovery are delivered by defendants to plaintiffs in an imaged-based format (Tiff or PDF) with load files for searchable text and metadata; and, practically never provided (except for a tiny proportion that are considered worthless as evidence in image format) as files produced in the manner in which they have been created and stored; that is, in their ultimately most utilizable incarnation; in native form.”

Why do so many producing parties offer load files with static images and text instead of native files?  Often it has to do with perceived, or at least argued, shortcomings of native files.  And defense firms commonly argue that image-based productions are actually cheaper than native file productions because they save plaintiffs the cost of processing and are comparable in utility to native files.

In this paper, we will take a look at the battle over how ESI is produced, including:

  1. Rule 34(b) and Form of Production
  2. Objections to Native File Production and Counter-Arguments
  3. Conclusions

We’ll publish Part 2 – Rule 34(b) and Form of Production – tomorrow.

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.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.