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and Thoughts for the Legal and Corporate Community Author: Alexander H. Lubarsky, LL.M., Esq. - email@example.com - Tel. (415) 533-4166 OR 800-375-4222 THIS BLAWG IS NOT AFFILIATED WITH THE WEB SITES WWW.DISCOVERYRESOURCES.ORG OR WWW.DISCOVERYRESOURCES.COM
Wednesday, May 19, 2004
Don't Cry for Me, Litigator (05.19.04) Andrew Lloyd Webber didn't think that Eva Peron sought sympathy and the Superior Court of West Virginia similarly finds that the requesting party in litigation involving e-discovery should expect consolation at every turn as well.
At issue recently in many courts is the hotly debated "spoiled brat" position. Is asking for "electronic documents" sufficient language in an RFP or must the producing party bend over backwards to provide its responses in the requesting party's favorite format?
These days it seems that the brats need to pipe down a bit.
When the requesting side says "gimme all of your electronic evidence" what does that include or exclude?
Responsive electronic documents can be produced to the requester via native formatted evidence (.wpd, .doc or .xls) but those aren't the only formats in town these days. Documents that have been scanned to .tiff or .gif or .jgeg or any other image format can now fit the bill. Evidence that has been posted on the web via .html is also an "electronic document" - even voice data and the ubiquitous .pdf fall into this ever widening category.
So what is a litigation professional to do?
The courts have addressed this issue as of late. The rule these days is simple. If you simply ask for "electronic documents" or "data compilations" then essentially any response in any electronic format even including an ASCII text rendition of the document is an appropriate response.
If the requester wants to throw the e-documents into its in-house litigation support database, however, it may behoove that requester to specify the format that is best utilized within that application (usually, .tiff but now we're seeing .pdf as well make the short list).
But ask and ye shall receive (or more appropriately, ascii and ye shall receive) is not the mantra of many courts that have struggled with this issue.
In Wisconsin, for example, if you ask for Swiss you better be happy if they serve you Cheddar. That's what you'll get and you WILL like it. Several weeks ago, the Wisconsin court in Northern Crossarm v. Chemical Specialties, held that a requesting party should make do with any format response even if the response is not formatted as specified in the discovery requests. The court basically slapped the ruler across the wrists of the whining parties and scolded "... we know you wanted chocolate pudding, but all we're serving tonight is a fruit bowl so that's what your gettin' ... any objections now....? Didn't think so". (The actual language reads: "no rule mandates that a party is entitled to production in its preferred format." but pudding and fruit are always more appealing than judicial holdings).
The decision, however, is not as unforgiving as a Boy's Reform School Yard Attendant. The court, to its credit, makes some distinctions which could pave the way for the upholding of a format-specific discovery request. For example, it held that where parties are clearly on notice that one (or both) of the parties truly would be better off with a particular format and production to that format is not substantially burdensome to the responding party, then an order mandating such a production would be appropriate. This would play out today in the common scenario where certain firms that routinely do battle know from experience that the other side consistently utilizes a tool that requires format A. If it is no more difficult for the responding party to deliver in format A, then the courts could raise an eyebrow if the production is made in format B. Such a "convenient inconvenience" benefiting the producing party may be more than a benign response.
So where does this leave us? If you find yourself on the producing side, do unto others... If you are the requester, hope for your preferred format but don't cry over spilled metadata if you don't get your way. Eva wouldn't.
posted by Alexander | 4:58 PM