ESI can be produced in an array of formats, including Tagged Image File Format (“TIFF”), Portable Document Format (“PDF”), and the file’s native format (i.e. in “.xls” format for Microsoft Excel files). Typically, the format of the ESI is decided on during the meet and confer conference at which parties may request ESI to be supplied in a particular format. On occasion, there may be a specific reason for producing a document in a particular format, including cost saving precautions, in order to avoid inadvertent disclosure of privileged information, or even in an attempt to circumvent discovery rules.
Under Fed. R. Civ. P. 34(b)(E)(ii), documents that were originally created in an electronic format must be produced in such a way that is “the form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” The Advisory Committee notes to the 2006 “electronic discovery” amendments further states:
The rule does not require a party to produce electronically stored information in the form it which it is ordinarily maintained, as long as it is produced in a reasonably usable form. But the option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation. If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.
Fed R. Civ. P. 34, Advisory Committee’s Note to the 2006 Amendment.
Thus, courts are generally reluctant to allow a party to take an electronically searchable document and either destroy it or degrade the document’s ability to be searched. In, Mitsui O.S.K. Lines, Ltd. v. Seamaster Logistics, Inc., Case No. 10-05591, (N.D. Cal., 2011), the U.S. District Court for the Northern District of California ruled that because the plaintiff’s audit was “ordinarily maintained” in an Excel format, the plaintiff had to produce the spreadsheets in “their native Excel format, keeping search capabilities and other attributes, such as formulae, intact.” See also Scalera v. Electrograph Syst., Inc., 262 F.R.D. 162 (E.D.N.Y. 2009) (holding that downgrading data to a less accessible and non-original form, such as printing/scanning of information on a computer, is a violation of the preservation duty).
The requirements read into Rule 34(b) help prevent parties from spending countless hours reviewing static images of files which, if in their native format, would typically have search functionality. For example, if a party requests a searchable form of a document and the opposing party produces TIFF images without search capabilities, a court is likely to require the opposing party to re-produce the document in another format that is searchable (e.g. a searchable PDF).
If a party does not request a specific format of ESI, the producing party should provide the opposing counsel with electronic discovery as if it where printed and produced in paper format (i.e. using static TIFF images with out search capabilities).
A special thanks to Sean Gajewski for helping with this post. Sean is a third-year law student at Hofstra University School of Law. You can reach him by email at srgajewski [at] gmail dot com. Bio: www.sgajewski.com.