New electronic discovery rules pose challenge

Requesting parties will be able to demand format of their choice, which poses some challenges for government agencies on both sides of discovery.

New federal rules on electronic discovery have cleared the Supreme Court and are expected to be passed by Congress by the end of the year, Law Technology News notes. To the extent (a large one) that government agencies will have to comply with discovery requests and FOIA requests, they'll need to comply with these new rules.

Rule FRCP 34(b), for instance, empowers a requesting party to specify the form or forms in which electronically stored information (ESI) is to be produced.

The producing party must deliver ESI in the specified form or make an objection stating the reasons it won't and the form or forms it intends to provide. Alternate forms must be either those in which the ESI is ordinarily maintained or that are "reasonably usable." This is a giant leap forward for requesting parties, who get ESI their way or at least in a way that's electronically searchable.

The possible formats are hard copy, image formats like PDF and TIF (which must include metadata layers), exported formats (generally exports of email and the like, commonly into an Excel-readable format), native files and hosted data.

In native production, the producing party furnishes duplicates of the actual data files containing responsive information and a requesting party with copies of the software programs used to create and manipulate the data (or compatible viewers) has the ability to see the evidence more-or-less exactly as it appears to the other side.

There are problems with native formats, though. If the native application is Oracle or SAP, it may be prohibitively expensive to deal with raw data. Plus, it takes trained professsionals to deal with those databases. Worse, it's entirely possible to change the native data while viewing it.

Producing parties often fight native production because of difficulty in redacting privileged information. An Outlook post office (.pst) file can hold both discoverable e-mail and privileged attorney-client communications, but as it's a unified and complex database file, it's challenging to separate the two.

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