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Alextronic Discovery
An Electronic Discovery Blog covering News, Articles
and Thoughts for the Legal and Corporate Community Author: Alexander H. Lubarsky, LL.M., Esq. - alubarsky@enterusa.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


Monday, September 06, 2004

Are you regular?  

Most Blawgerheads who don't boast too much unallocated disk space between their ears understand that the ubiquitous Rule 34(b) requires a responding party to produce electronic documents "as they are maintained in the regular course of business." This definition has caused many to pontificate in Bill ClintonEsque style... doesn't it depend on the regular definition of "regular"?

The Southern District of New York - home to more EDD decisions, discoveryheads and Wall Street firms waiting in long lines to drop off their clients hard drives to their local e-discovery vendor recently struggled with this same issue.

In Zakre v. Norddeutsche Landesbank Girozentrale (2004 WL 764895) (say that one five times fast for a free Introspect T-Shirt!) the court was faced with a situation in which over 200,000 e-mail messages were produced by the party hit with the RFP in the following fashion:
The e-mail messages and their attachments were converted to plain text with an ASCII extraction utility and delivered in standard, non-delimited format to the requesting party. This production is one step above a pure paper production in the sub-par chart maintained by fretting litigators awaiting their e-discovery responses.

To no one's surprise, the requesting party moved the court for an order to compel in line with Rule 34(b) arguing that such a pure text rendition of the requested data was far from the format that the producing party kept in the "regular course of business."

Any wagers on which way the court swayed... ?

Get this... the court opined that the production was sufficient because all of the e-mail text was produced quickly and in a searchable electronic format. True, much metadata was likely not extracted nor would an export to a local or hosted litigation support database application for strategy review be anything remotely resembling a turnkey operation, but the court held that this ASCII text production met the bare minimum standard.

Now the bury in paper tactic may not be the only such tactic that one can use to get the requesting party's counsel to blow steam through their ears...

It should be noted that this very issue concerning acceptable production formats for requested electronic discovery is still hotly debated in other jurisdictions, so stay REGULARLY tuned to Alextronic for the late breaking updates on this doozy...

posted by Alexander | 1:49 AM

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