Saturday, October 04, 2008

2008-10-04 No Ask, Maybe Get: TIFF Files Held Not Reasonably Searchable

In a September 15, 2008 decision in the case of Goodbys Creek, LLC v Arch Ins. Co., Inc. (2008 WL 4279693 (MD FL 2008), Magistrate Judge Snyder, while recognizing that a failure to ask for native data format may waive a later request for same, nevertheless accepted the assertion that a production of a tiff format file made searching them "much more difficult" and compelled defendant to (and apparently in the alternative) to:

"provide any documents previously supplied as TIFF images in their native data format, provide any documents in another comparably searchable format, or supply Goodbys with software for searching the TIFF images."

This decision represents a departure from recent decisional authority that (1) holds a requesting party to its first request language, and in the absence of a specific format request, (2) permits a producing party to provide only "reasonably usable" ESI.

1 comment:

Jim Hoerricks said...

Thanks for posting this info. As judges rule on evidentiary issues and the requirement for native file types, it ripples through the entire legal system.

I see that you've written on Swinton. I have several posts and articles on the implications of Swinton from an evidence processing and expert witness point of view.

It's amazing how much cross-over there is from case to case. Seemingly unrelated cased get cited in support of issues (that the original judge had no intention of supporting) and creating entirely new case law - for better or worse.

Again, thanks for the post. Life in the legal world just keeps getting more interesting.

I've posted a link to this page on my blog at which will show up in the afternoon update.

Jim Hoerricks
Forensic Image Analyst and author of the Forensic Photoshop blog