Sunday, May 20, 2007

2007-05-20 Electronic Discovery Requests - Be Very Careful What You Ask For...And How You Ask For It

Just because you ask for electronically stored information, does not mean the producing party must produce the information requested in electronic format.

In Pace v. International Mill Service, Inc. Slip Copy, 2007 WL 1385385 (N.D.Ind. 2007), the Court denied a motion to compel, holding that "[Plaintiff's] assumption that Rule 34 can be read to provide a general standard for electronic documents, without reference to his specific request, is incorrect. The Court reasoned that so long as the production is "reasonably usable" it complies with discovery rules.

The Court then offers a wonderful gotcha issued in Northern Crossarm Company, Inc. v. Chemical Specialities, Inc., 2004 WL 635606 (W.D.Wis.2004) in which it notes with approval that Court's observation that “First, plaintiff did not specifically request production of the e-mail in electronic format, it simply asked for production of documents, adopting the definition in Rule 34(a). This certainly entitled plaintiff to disclosure of the information stored electronically, but it did not require production in electronic format.”

Moral: Competency competency check: Just because you make an Fed. R. Civ. P. Rule 34 Request does not mean that you will get electronically stored information in the manner in which it is stored. Stripped electronic information, by way of .pdf or .tiff format may, absent a specific request (and be ready understand how to defend that request) suffice.

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