Production

Federal Rules of Civil Procedure

Negotiations about the form in which the production of documents by all parties will be made should have already occurred by the time documents are being prepared to be produced. The proposed amendment to Rule 26(f) of the Federal Rules of Civil Procedure states that "parties must, as soon as practicable and in any event at least 21 days before a scheduling conference is held or a scheduling order is due under Rule 16(b), confer..." as to "any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced." It is clear the intent of the rules is that parties will discuss and plan for the production of documents in the initial stages of the litigation. From a practical standpoint, the determination or agreement about the form of production must be made at the initial stages of the electronic discovery process to ensure the chosen form is still an option after the collection, processing, and review is complete.

In proposed Rule 34(b) a requesting party may specify the form of production. If it fails to do so or if the responding party objects to the requested form of production, the responding party must state its intended form of production in its response to discovery requests.

A Committee Note to proposed Rule 26 states that "parties may be able to reach agreement on the forms of production, making discovery more efficient."^[1] To reach such an agreement and to know in what format - or formats - to request production, it is important to fully understand the types of documents available for production, the nature of those types of documents and how those factors will impact your ability to discover the knowledge you need to address the issues in your lawsuit. Consider the situation in which opposing counsel, after receiving your production, determines the spreadsheets in image format do not provide the information she requires to completely analyze the documents. The issue is considered upon motion by the court and the court rules that production of spreadsheets must be in native format. You must now re-review and re-produce the spreadsheets in native format, resulting in increased cost and wasted time. A "meet and confer" conference held between knowledgeable and informed representatives of all parties which thoroughly addresses all aspects of the production of electronic documents will result in a clear roadmap for collection, processing and production of documents.

Footnotes

1. 1.  Rules App. C-34.

More Categories

Federal Rules of Civil Procedure

Negotiations about the form in which the production of documents by all parties will be made should have already occurred by the time documents are being prepared to be produced.

Factors to Consider

In order to successfully negotiate the form of production, a few factors should be considered.

Metadata

If metadata is an issue in your lawsuit, you should consider consulting with a forensics expert as early as possible in the lawsuit.

Rolling Production

A rolling production is a negotiated schedule for producing data in stages rather than all at once.

Production Media Types

There are a few options for producing data.