July 31, 2019 Practice Points

Nouvelle Vague: New Norms for ESI Discovery

When the Sedona Principles change their approach to a topic, the bench and bar should take notice.

By Angela S. Fetcher and Connor Cafferty

The Sedona Principles are a leading authority on the discovery of electronically stored information (ESI). So when the Sedona Principles change their approach to a topic, the bench and bar should take notice. The most recent change is to the “same ability” principle.

The second edition of the Sedona Principles required that all discovered ESI give the requesting party the “same ability” as the responding party to access, search, and display information for purposes of Rule 34(b)(2)(E). The newly published third edition of the Sedona Principles, however, removed the phrase “same ability.” Instead, the third edition now says that the cornerstone of Rule 34(b)(2)(E) is that ESI should be produced in the format in which it is ordinarily maintained or in a form that is reasonably usable.

Jordan v. Mirra, No. 1:14-CV-01485-GAM (D. Del. Feb. 27, 2019), report and recommendation adopted, No. CV 14-1485 (D. Del. May 15, 2019), discusses what qualifies as a “reasonably usable” format for ESI in the course of discovery under Rule 34(B)(2)(E)(ii) of the Federal Rules of Civil Procedure. In this case, the defendant turned over accounting records in a mixed-use format. Some accounting records were stored in Microsoft Excel and the remainder was stored in TIFF format. The special master found this complied with the requirements on Rule 34(b)(2)(E).

The special master said that the format was appropriate for three reasons. First, because the “same ability” requirement was eliminated by the third edition of the Sedona Principles, litigants need no longer meet the same ability requirement. Second, the mixed format was consistent with the responding party’s document-retention policy. The policy of the respondent lent credibility to the argument that the mixed-use format was the “ordinarily maintained” form. Third, TIFF format is considered “reasonably usable” in a majority of instances for purposes of Rule 34(b)(2)(E)(ii). TIFF is a reasonably usable form of production “for most purposes and types of ESI.”

Rule 34(b)(2)(E) governs the production of ESI in the discovery process. The touchstone of this rule is that a requesting party is entitled to production of ESI as it is ordinarily maintained or in a form that is reasonably usable. Mirra shows that, under the third edition of the Sedona Principles, a respondent may produce records in the form in which the records are usually maintained or a form that is reasonably usable for purposes of the litigation. This case showcases that the “same ability” principle is no longer applied or required in discovery of ESI. A requesting party may find that this change makes the format of ESI more difficult to navigate, but overall more practical for all parties in the discovery process.

Angela S. Fetcher is a member of Stoll Keenon Ogden PLLC in Louisville, Kentucky and Connor Cafferty is a 2020 J.D. candidate at University of Louisville Brandeis School of Law. 

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