I recently negotiated an ESI order for a series of consolidated actions in state court in California. The order is controlling for discovery over the defendant in MDL proceedings as well, so there were many complicating factors, and about 4000 cases counting on me getting the discovery needed.
As the ESI attorney for the cases, my first job is to negotiate what we want — form of production being at the top of the list. Now, if you’ve met me at any eDiscovery events in the last say, 4 years, you’ve probably heard me rant about lawyers needlessly wasting hundreds of thousands of dollars on TIFF images with load files, rather than producing in native format. But that’s for another post.
The point of this one is that California’s eDiscovery rules — specifically California Code of Civil Procedure 2031.030, titled Form of Production — provides for the requesting party to seek its desired format. Section 2031.030(a)(2) states:
A party demanding inspection, copying, testing, or sampling of electronically stored information may specify the form or forms in which each type of electronically stored information is to be produced.
Unlike FRCP Rule 34, California’s statute DOES NOT provide for any objection by the producing party. Why is that important? Because lawyers who are addicted to producing in TIFF with load files use the objection language in Rule 34 (and any state rule that contains the same language) to argue that TIFF is how it’s always been done, and how it should be done here. That’s a load of BS, but I’ve been ESI counsel at hearings where judges, well respected judges, no less, have fallen for that BS.
The nuances of the eDiscovery rules for the jurisdiction where your case is pending are key. Incidentally, you can find that California rule about Form of Production in eDiscovery Assistant under Rules/States/California. We even have the rules tagged with our own ediscovery tagging infrastructure so you can find the rule you want easily. Nice, eh?
Know what the rules of your jurisdiction say regarding form of production. It matters whether you’re requesting OR producing, as you’ll have to decide what approach to take. For defendants producing in native who still want to control Bates numbers, you can produce in two formats, you just aren’t REQUIRED to do so (meaning you can produce TIFF images as well as native).
Just be prepared for ESI counsel to require a written agreement that you cannot recover your TIFF costs under 28 U.S.C. 1920 or any state equivalent. Because you shouldn’t be able to — at least not on my watch.