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Lesson Learned: Best Practice Is To Specify Desired ESI Format In First RFP

Posted on February 4th, 2015

The plaintiff in Allison v. Clos-ette Too, LLC, No. 14 CV 1618 (LAK)(JCF) (S.D.N.Y. Jan. 9, 2015) learned the hard way that the best ESI practice is to always specify the desired document format in the first request for production. Plaintiff sent discovery requests to Defendant, but failed to specify the desired document format.  Defendant produced documents in numerous waves, always in a non-native format, and Plaintiff never objected. After Defendant’s production, Defendant served its own requests for Plaintiff’s ESI, specifically requesting that Plaintiff produce the documents in native file format.  Plaintiff then contacted Defendant, requesting that it reissue its production in native file format. After several discussions and email communications, Defendant refused to re-produce its documents.  Plaintiff moved to compel. To reach a decision, the Southern District of New York – often considered a leader in ESI matters – considered how to reconcile several sections of FRCP 34.  Specifically, the court considered the following:

  • FRCP 34(b)(1)(C), which states that a party may specify the form of electronically produced information in discovery requests;
  • FRCP 34(b)(2)(E)(ii), which states that if a request fails to specify a specific format, the party must produce the ESI in either the form in which it was ordinarily maintained, or a reasonably useable form.
  • FRCP 34(b)(2)(E)(3), which states that a party need not produce ESI in more than one form.

Because Plaintiff’s original request did not specify an ESI format, and Plaintiff made no allegation that the production was not “reasonably useable,” and given that Defendant had no obligation to produce documents in more than one form, the court denied Plaintiff’s Motion to compel. ILS – Plaintiff Electronic Discovery Experts Did you know? Native file format is data saved in its original software format (e.g., “.doc” for a Microsoft Word file).  ILS typically advises our clients to request that Defendants produce ESI in native file format, as it provides the richest information about a document.

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