February 28, 2020 Practice Points

Saving Time and Money by Designating the Form of Production

Taking advantage of an underutilized rule.

By Joseph V. Schaeffer

For nearly 15 years, the Federal Rules of Civil Procedure have allowed a requesting party to designate the form in which it wants the producing party to give it electronically stored information (ESI). Yet my experience is that remarkably few practitioners take advantage of this rule. Here are three reasons why they should reconsider.

Practitioner burdens. If a requesting party has access to a sophisticated e-discovery platform, it probably won’t mind if the producing party delivers its ESI as Group IV TIFFs with load files containing extracted text and metadata. That production probably matches its preference. But if a requesting party plans to review documents using standard computer software, that production would be a nightmare. The requesting party would probably far prefer that the producing party deliver its ESI in native files or as PDFs. If the requesting party didn’t specify, however, it might be stuck with whatever the producing party chooses.

Cost. Storing ESI can be expensive—particularly if you are using one of the cloud-based e-discovery platforms, which can charge as much as $30 per gigabyte (GB) per month. And some forms of production (such as native productions) can result in a smaller volume of data than other forms of production (such as TIFF productions). Knowing this—and specifying it in your production—can save you or your clients hundreds or thousands of dollars per month.

Usability. Some types of ESI just don’t lend themselves to conversion. Microsoft Excel documents, for instance, are notoriously difficult to convert to TIFF while maintaining the same level of usability. And some documents, such as audio and video files, just can’t be converted at all. Unless you specify how this ESI is to be produced in your documents requests, however, you might get a format that is nigh unusable.

If the parties did not stipulate to the form of production (and they really should have tried), don’t forget about your right to designate the form under the Federal Rules of Civil Procedure. It might just save you time and money.

Joseph V. Schaeffer is a member with Spilman Thomas & Battle, PLLC, in Pittsburgh, Pennsylvania.

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