Failing to follow Rule 34′s procedures can result in having to produce ESI a second time in a different format

Covad Communications Co. v. Revonet, Inc., 260 F.R.D. 5 (D.D.C. 2009); Cenveo Corp. v. Southern Graphic Systems, 2009 WL 404 2898 (D. Minn. Nov. 18, 2009)

Because the production of electronically stored information (ESI) can occur in various formats, Rule 34 sets up a process through which the parties are supposed to resolve their disputes over the format of production. Rule 34(b)(1)(C) permits the requesting party to specify the format in which to produce the requested ESI. The producing party can either agree to produce the ESI in the requested form or can object to the proposed format. Rule 34(b)(2)(D) specifies that when either the requesting party fails to specify a production format in its request for documents or when the producing party objects to a specified format, the producing party is obligated to identify the format in which it proposes to produce the requested ESI. If the parties are unable to agree on a format, the Rule contemplates that a court will then resolve the issue, but is not bound by either party’s proposed production formats.

Rule 34 contemplates that the parties will resolve their disputes over the format of production before any production occurs. Indeed, the Advisory Committee Note to Rule 34 explains: “Stating the intended form before production occurs may permit the parties to identify and seek to resolve disputes before the expense and work of the production occurs.”

When a party unilaterally produces ESI in a format of its choice without providing the prior notice contemplated by Rule 34(b)(2)(D), the Advisory Committee Note to the Rule further explains that the producing party runs the risk that a court may conclude the ESI was produced in a format that was not reasonably usable and may order that it be reproduced in a different form. That very nightmare occurred in both of today’s featured decisions and the Covad Communications decision provides a textbook example of the type of problem that can occur when a party has to produce its ESI a second time in a different format.

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Claim of attorney work product will not support disorganized electronic data dump

Securities and Exchange Comm’n v. Collins & Aikman Corp., 2009 WL 94311 (S.D.N.Y. Jan. 13, 2008)

Did you know that the art and science of hiding messages or information within other forms of data is called is called steganography. Wikipedia describes it as “a form of security through obscurity.” In today’s digital world, it includes the concealment of electronic information within other computer files.

Many lawyers practice steganography without knowing its name. Frequently they attempt to bury critical or key documents in a voluminous document production in response to an opponent’s discovery requests. The potential for this type of “gamesmanship” has grown with the advent of ediscovery. Collins addressed and rejected several arguments commonly used to justify this type of steganographic discovery response. The Collins decision was written by District Judge Shira Scheindlin who authored the Zubulake decisions which addressed litigation-hold requirements. So on several different levels, the decision merits your attention.

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