Planning to Produce?

While it seems most of us agree and follow amended Rule 34(b)’s form of production requirement that both parties produce ESI in the form or forms ordinarily maintained or those that are reasonably useable, an often overlooked Advisory Committee Note seems to still wreck havoc in many, often large and expensive ESI productions, causing otherwise unnecessary additional time and expense to clients and their law firms along the way:  the burden of the producing party to ‘announce its intention to produce in a particular format’, such as .tiff images or a litigation database load file format, such as Summation, Concordance, or IPRO.

“If it [the producing party] omits this step and makes production in a format of its choosing, it ‘runs a risk that the requesting party can show that the produced form is not reasonably useable and that it is entitled to production of some or all of the information in an additional form.’”  See, Fed. R. Civ. P. 34(b)(ii), Advisory Committee Note of 2006.

The technology and labor resources required to convert various production formats into one that may be deemed ‘reasonably useable’ by the other side generally makes a compelling argument to the court to order a production set re-produced accordingly.  Fortunately, this can easily be avoided entirely via simple correspondence or, even better, a comprehensive form of production agreement with opposing counsel outlining these items prior to beginning the actual production process.