Electronic Discovery: Why You Should Often Ask to Receive Requested Information in Electronic Format

In a post last week, I mentioned that Illinois rules require the production of electronic information in printed form. Sometimes this rule might be beneficial: for example, lawyers who are not even thinking about electronically-stored information when they send a discovery request should receive the requested information anyway, despite their lack of forethought.

However, the rule also creates problems. A relatively small amount of electronically-stored information might equate to truckloads of documents when printed out on paper, as I also mentioned last week. This is one reason why lawyers might specifically request electronic information to be produced in electronic format. Here are some others:

• Electronic information can often be searched electronically;
• Electronic information can be manipulated electronically, making it possible to analyze the information in ways that are not possible in printed form;
• Electronic information will often include earlier versions and drafts of important documents that you would not receive otherwise;
• Electronic information might include relevant data ("metadata") that is not accessible in printed form.

For this reason, you should always enter into a dialogue with the opposing attorney about how relevant electronic information will be produced. If it is going to be produced in a way that hampers your ability to prepare your case, you should seek the intervention of the court if you cannot work out your dispute by agreement.

Source note: Some of the bulleted items are from a presentation on electronic discovery by Robert Kenner at the 2005 ATLA summer convention.

 

Comments

[Eh Nonymous]

Most favorite kind of discovery production: text-searchable PDFs.

Least favorite kind of production: boxes and boxes and boxes of loose paper, packed as densely as a rubber brick. Usually not because of bad faith (removing folders or rubber bands or labels) but simply because many humans are disorganized, and we're receiving their files.

Most amusing finds in discovery: the unredacted version of a previously produced redacted document. Either a different attorney reviewed the second one for privilege or confidentiality, or the same person missed it the second time, or it came from a different source. Often includes salty language.

Most-desired finds: e-mails like the one described by Law.com where the lawyer says, "Gee, fellow attorney, I just made a big mistake, could be a $1 million malpractice suit if I'm wrong..."

Least-desired find: E-mail from client (or from opposing party, or attorney) clearly establishing that our claim is not meritorious.