Collection, Production Tactics | Ordinarily Maintained or Reasonably Usable Form
In eDiscovery, ESI can be produced in many forms. For both the requesting party and the producing party, the form chosen can impact strategic issues like cost, search-ability and ease of manipulation. Form of production can be a contentious issue between litigants.
California’s new electronic discovery rules (Assembly Bill 5 - amendments to the California Rules of Civil Procedure) set a framework for negotiating the form of ESI production.
Amended Section 2031.030(a)(2) of the Code of Civil Procedure provides: “A party demanding inspection, copying, testing, or sampling of electronically stored information may specify the form or forms in which each type of electronically stored information is to be produced.” [Notice the words "testing" and "sampling".
Further, amended Section 2031.280(d) provides: “Unless the parties otherwise agree or the court otherwise orders, the following shall apply: (1) If a demand for production does not specify a form or forms for producing a type of electronically stored information, the responding party shall produce the information in the form or forms in which it is ordinarily maintained or in a form that is reasonably usable.”
Like the FRCP, this framework leaves lots of room for negotiation and disagreement.
“When collecting a unit of ESI (such as an e-mail) within an organization, we might find it in more than one format,” says Greg Smith, eDiscovery specialist at Messaging Architects. “It might be in network backup. It might be an e-mail management system like Groupwise. It might be in an archival system like M+Archive. It might be in other formats and locations too.”
Leading courts like Williams v. Sprint/United have spoken of production of ESI in its “native format.” For courts like Williams, the rough idea is that a unit of ESI should come with its original meta data and structure, so as to enable better insight into what the ESI was and what it meant.
According to Greg Smith, “The concept of native format might mean different things for different circumstances in an enterprise information system. For example, the structure and metadata applicable to a given e-mail might be different depending on whether the email is collected from an electronic mail system like Microsoft’s Exchange or from an archive appliance like Symantec’s Enterprise Vault. It’s my job to help trial counsel understand the different possibilities, evaluate options and then document/explain the format decisions and actions that are executed in ESI collection and production.”
Mr. Wright is an affiliate of messagingarchitects.com, experts in eDiscovery services. Here is an ARMA podcast describing Messaging Architects' work in e-mail archiving, including its workshop for development of an email records policy in an enterprise.