Courtney Writes
Do the New Federal Rules Require Production in Native File Format?
Courtney Ingraffia Barton, Esq., Vice President, Industry Relations
Dear Courtney,
With the new Federal Rules regarding e-discovery now in effect, I’m curious about how courts are ruling with regard to form of production. At every e-discovery seminar I attend, presenters are making grave pronouncements that everything from now on will have to be produced in its native file format. This seems worrisome. If we produce files in their native format, how will we control what the opposing party does with them? How can we protect ourselves from manipulation of the information we give them? What can you tell me? --Richard W., Chicago
Dear Richard,
Although we have not seen much case law yet dealing with form of production, now that the Federal Rules are in effect, we are sure to see an upswing in cases addressing the issue of form of production. I can tell you that many of our clients at Applied Discovery are asking the same questions about native file format. While it is true that native file production is getting a lot of attention, it is not always the ideal solution, for reasons that I will outline below. First, let us look at where this clamor for producing in native file format is coming from.
Rule 34(b)(ii) states that “if a request does not specify the form or forms for producing electronically stored information, a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable.” The phrase “in which it is ordinarily maintained” often has been construed as meaning in its native file format.
There are several problems with this interpretation, however. First, the intent of the amended Federal Rules is to make the discovery process more efficient and effective. As the Committee Notes state, "Rule 26(f)(3) explicitly directs the parties to discuss the form or forms in which electronically stored information might be produced. The parties may be able to reach agreement on the forms of production, making discovery more efficient."
This requires that parties going into the discovery planning conference know what their requirements are for form of production and understand their capabilities and systems, with a clear comprehension of the advantages and disadvantages of the various forms in which electronic evidence can be produced. It is only when the parties cannot agree on a form of production that the Rule 34(b)(ii) language comes into play.
As stated above, Rule 34 requires either that information be produced as it is ordinarily maintained or in a form that is reasonably usable. Nowhere do the rules require native production. In fact, the Committee Notes specifically recognize the various disadvantages of producing in native format.
For example, producing electronic evidence in native file format means that to review those files, the requesting party has to have copies of the software programs used to create the files (or viewers, if available). Having to buy and load all the different software to review in native format can be burdensome. The requesting party may also lack the expertise to access native data while preserving its evidentiary integrity.
Other drawbacks to reviewing and producing in native file format include the inability to redact, the inability to do a single search across an entire data set, and the inability to Bates number documents. Another big concern, as you mentioned, Richard, is the lack of control over alteration of native files. What is to prevent the requesting side from altering those native files before they present them at trial? By contrast, using hash values (or document fingerprints) in processed documents, the responding party can compare what they produced with what opposing counsel is presenting at trial.
To further complicate the form of production issue, there is also the perception that metadata are available only with production in native file format. This is definitely not the case. In fact, processing the data not only preserves the metadata but also makes them searchable across different file types, adding an element of organization to a project that is not available with native files.
In some cases, where the evidence being requested moves beyond the type of information that can be produced in image files (e.g. voicemail audio files, databases, or video files), native file production may be the only practical option. In addition, native files should be available when Microsoft® Excel spreadsheets are produced so that the receiving party can view formulas, if necessary. When these formats are at issue, hybrid productions are the best way to go. As the Committee Notes state, "the requesting party may ask for different forms of production for different types of electronically stored information."
We will continue to see commentary and court decisions on this very important issue of form of production. For now, though, parties should educate themselves on all of the issues surrounding native file review and production so that they can make decisions about what is best for each individual case. The Applied Discovery white paper, The Truth About Native File Review, is an excellent source of more in-depth information on this topic. Meanwhile, as technology changes, so will best practices in producing electronic information, so any wise attorney will stay on top of these issues.
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Author Bio:
Courtney Barton is Vice President of Industry Relations at Applied Discovery. She answers questions from readers in each issue of The Discovery Standard. You can submit a question to Courtney at edstandard@applieddiscovery.com.
View Courtney Barton's biography.