Start by trying to agree. First, try to avoid conflict around format by addressing the issue as soon as possible, e.g., during the meet-and-confer meetings required by state and federal practice. See Fed R Civ P 26(f)(3)(C). Under Cal Rules of Ct 3.724(8), counsel must consider format and other issues relating to the discovery of electronically stored information (ESI) when they meet and confer before the initial case management conference.
Don’t leave the decision about format until late in the e-data discovery process, because how the data will be produced determines how it will be processed and reviewed.
If you can’t agree, make your demand. If the meet-and-confer doesn’t result in agreement on a production format, one party may issue a demand or subpoena that specifies the form or forms in which ESI is to be produced. CCP §§1985.8(b), 2031.030(a). See, e.g., Vasquez v California Sch. of Culinary Arts, Inc. (2014) 230 CA4th 35, 42 (plaintiffs entitled to require production of ESI in searchable and sortable format).
If there’s no form specified, produce in native format or a reasonably usable format. Absent a specified form by either agreement or demand, you have to produce ESI either
- in the form in which it’s ordinarily maintained (usually files are maintained in their native file type format), or
- in a form that’s reasonably usable.
Don’t assume that native format will become the default mode of production when there’s no agreement between the parties—there are situations in which it’s more difficult to review and analyze documents in their native format than to first convert them into a different format, e.g., if viewing the files in their native format requires the use of an old and now unavailable program. But keep in mind that conversion of data into other formats may strip out valuable information such as formulas in spreadsheets or other metadata.
When it comes to producing ESI, format issues can be quite acrimonious. Parties commonly litigate the issue of production format and the courts have held that the “[r]ules do not require a party to produce ESI in the form most helpful to the opposing party.” Wilson v Conair Corp. (ED Cal, Apr. 30, 2015, 1:14-cv-00894-WBS-SAB) 2015 US Dist Lexis 57654, *10.
Get guidance on all aspects of managing ESI discovery in CEB’s California Civil Discovery Practice, chap 4.
Other CEBblog™ posts you may find useful:
- Hiring Help for E-Discovery
- Avoid the Dangers of Missing E-Data
- Put a “Legal Hold” on Data Destruction
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