One' Lawyers Reasonably Useable Form of Production is Another's.....

Three recent district court decisions serve to emphasize the murkiness in Rule 34's admonitions regarding the form of production of electronically stored information in response to opposing counsel's request. The language of the rule is clear, of course. "Documents" must be produced as they are kept in the "usual course of business" or "in a reasonably useable form". Clear enough? Apparently not.

In White v. The Graceland College Center for Professional Development & Lifelong Learning, Inc., 2008 U.S. Dist. LEXIS 71865, Magistrate Waxse opinioned that defendant’s production of e-mails and attachments as print outs of PDF files was neither the form in which they were maintained (electronic) nor reasonably usable form. Accordingly, he ordered the defendant to reproduce the e-mails and attachments in native electronic form. Magistrate Snyder, in Goodbys Creek LLC v. Arch Insurance Company,2008 WL 427963 found that production of documents in TIFF format – an electronic alternative to paper in widespread use among e-discovery aficionados – was not reasonably usable and ordered defendant either to supply the documents in native form, in “another comparably searchable form” or to supply plaintiff with software for searching the TIFF images. Finally, in Perfect Barrier LLC v. Woodsmart Solutions, 2008 U.S. Dist. LEXIS 71863, Magistrate Nuechterlein was confronted with a request by plaintiff to have the defendant replace electronic copies of e-mail messages produced in their native electronic form with static, bates-numbered images (presumably TIFF files); the court ruled that the electronic production was adequate and that defendant need not reproduce the files.

What is reasonably usable format to one viewer may not be reasonably usable to another, depending on the tools that party has available (and perhaps even the sophistication of the viewing counsel. Judge Waxse put his finger on the problem in the Graceland case, however, when he wrote: “[T]his discovery dispute is an example of one which … could have been avoided had the parties adequately conferred at their … Rule 26(f) conference regarding production of electronically stored information.”

Be forewarned, counsel. There is no substitute for a thoroughly negotiated agreement on e-discovery protocols and procedures BEFORE the cart runs away without the horse.