chevron-down Created with Sketch Beta.
October 31, 2017 Practice Points

The Producing Party Controls the Method It Uses in Producing Its ESI

Will a court force a party to produce the ESI using a specific format? The Southern District of New York said no.

By Tracy DiFillippo

The federal rules and case law encourage parties to discuss and negotiate early in a case the proper scope and methodology of producing electronically stored information (ESI). If the parties are unable to reach a resolution regarding the scope and method, the parties may seek assistance from the court. However, when the issue is the methodology of producing the ESI, will a court force a party to produce the ESI using a specific format? The Southern District of New York in Pauline v. New York City, 10 Civ. 311 (August 1, 2016) answered this question in the negative.

In Pauline, the parties jointly sought the court’s assistance in resolution of the proper scope of ESI discovery, namely, custodians, date range, and search methodology. After reviewing the arguments of counsel, the court reached a decision regarding the scope, as to the custodians and date range. However, the court refused to force the City of New York to use a specific search methodology, as requested by the plaintiff. The plaintiff requested that the City use TAR (technology assisted review, aka predictive coding) rather than use keyword searching, which the City preferred. The court acknowledged that “TAR is cheaper, more efficient and superior to keyword searching” but noted that parties should cooperate in discovery and cooperation does not give the requesting party or the court the power to force the responding party to use TAR. The court recognized Sedona Principle 6, which provides: “Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.” Following this principle, the court explained that the City was best situated to decide how to search and produce responsive ESI. The court noted that the plaintiff may demonstrate later that the City’s production is deficient, which may require the City to redo its search.

Parties should work together early in the case regarding the production of ESI, including the search methodology for producing ESI. If the parties are unable to reach a resolution regarding the methodology, the requesting party should make a clear record of the preferred method and the reason for such request to use later if there are any deficiencies. In light of Sedona Principle 6 and the refusal of courts to force parties to use a particular methodology, it is highly recommended that attorneys wait to see if there are deficiencies in the production before seeking court intervention on the specific methodology.

Tracy DiFillippo is a partner with Armstrong Teasdale LLP in Las Vegas, Nevada.

Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).