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Who Gets to Decide, Production Fundamentals Series Part 3

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A multi-part series on the fundamentals eDiscovery practitioners need to know about the preparation and production of ESI

In “The Final Countdown,” we discussed the importance of production and the primary production formats.  In “The Nitty-Gritty and Other Reduplications,” we discussed other important production format considerations.  In this Part, we review what the FRCP have to say about who selects the production format.


Now that we’ve reviewed the available production formats and related options, it’s time to discuss which party gets to decide on the formats and options to be used in a typical case.  Pursuant to the Federal Rules of Civil Procedure, both parties have opportunities for a say: first, in negotiations; then, through requests and objections; and finally, through motions to compel and protect.

Negotiation in FRCP 26

Production format selection for ESI first comes up in FRCP 26(f) as part of the required meet and confer.  FRCP 26(f)(1) specifies that “the parties must confer as soon as practicable,” and 26(f)(2) specifies that, among other things, the parties must use the conference to “develop a proposed discovery plan.”  FRCP 26(f)(3) describes what this discovery plan must address, including “(C) any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced” [emphasis added].

Good faith efforts to fulfill this requirement are expected of the parties.  FRCP 37 specifies the consequences for failure in this area:

(f) Failure to Participate in Framing a Discovery Plan. If a party or its attorney fails to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f), the court may, after giving an opportunity to be heard, require that party or attorney to pay to any other party the reasonable expenses, including attorney’s fees, caused by the failure.  [emphasis added]

Thus, in an ideal case, the parties discuss the available production formats and other options during their initial conference, reach a mutually-acceptable agreement, and document that agreement in a written discovery plan that both parties then follow.  When uncertain of what approach to use, it is common for parties to look to publicly-available federal agency production protocols as models they can use for their own production plans.

Requests and Objections in FRCP 34

Unfortunately, many cases do not follow that ideal path, and the specifics of production preferences and expectations remain unaddressed until later in the discovery process.  In such cases, FRCP 34 provides the next set of instructions for who gets to decide on production format.

In cases where a prior agreement has not been negotiated, FRCP 34(b)(1)(C) allows parties requesting production of ESI to “specify the form or forms in which electronically stored information is to be produced.”  If the responding party does not want to produce in the requested form, FRCP 34(b)(2)(D) allows them to object to the requested form and state its proposed alternative:

(D) Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form – or if no form was specified in the request – the party must state the form or forms it intends to use.  [emphasis added]

FRCP 34(b)(2)(E) then lays out the parameters within which a responding party can choose when objecting and proposing an alternative, or when no format has been negotiated, requested, or ordered:

(E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:

. . .

(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and

(iii) A party need not produce the same electronically stored information in more than one form.

[emphasis added]

Thus, parties must choose between producing ESI in native format (the “form or forms in which it is ordinarily maintained”) or in some other “reasonably usable form or forms,” which typically means near-paper or near-native, accompanied by a load file with relevant metadata, searchable text, etc.

Motions to Compel and Protect in FRCP 37 and 26

In the event, the request and objection process described above leads to an irreconcilable dispute over the appropriate production format, a requesting party’s final recourse is to submit a motion to compel the requested discovery, in the requested format, pursuant to FRCP 37(a).  Before doing so, however, the requesting party must make a good faith effort to confer with the responding party to resolve the issue:

(1) In General. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.  [emphasis added]

In parallel, a responding party can also seek a protective order, pursuant to FRCP 26(c), protecting it from having to provide the requested discovery, in the requested format.  FRCP 26(c)(1)(A)-(C) allows that:

. . . The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(A) forbidding the disclosure or discovery;

(B) specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery;

(C) prescribing a discovery method other than the one selected by the party seeking discovery;

[emphasis added]

The same limitation on seeking a protective order applies however: the responding party must first make a good faith effort to confer with the requesting party to resolve the issue.

It should also be noted that, depending on the outcome, either type of motion can result in an award of expenses, including fees, pursuant to FRCP 37(a)(5).


Upcoming in this Series

In the next Part, Production Format Disputes, we will continue our review of production fundamentals with a discussion of some recent cases involving production format disputes.


About the Author

Matthew Verga

Director, Education and Content Marketing

Matthew Verga is an electronic discovery expert proficient at leveraging his legal experience as an attorney, his technical knowledge as a practitioner, and his skills as a communicator to make complex eDiscovery topics accessible to diverse audiences. An twelve-year industry veteran, Matthew has worked across every phase of the EDRM and at every level from the project trenches to enterprise program design. He leverages this background to produce engaging educational content to empower practitioners at all levels with knowledge they can use to improve their projects, their careers, and their organizations.

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