The Federal Rules of Civil Procedure have several important provisions about production format. Rule 26 requires the parties to meet and confer about form of production in connection with the discovery plan. Rule 34 addresses content and timing of production format requests and objections. Perhaps most important, Rule 34 also lays out the consequences of failing to specify a form of production.
Production format should be part of the Rule 26(f) conference and discovery plan
Rule 26(f) imposes an aggressive timetable for addressing production format. The parties must discuss production format in the discovery meet and confer, which is to be held “as soon as practicable” and at least 21 days before the scheduling conference.
Rule 26(f) further provides:
(3) Discovery Plan. A discovery plan [to be submitted to the court within 14 days of the Rule 26(f) conference] must state the parties’ views and proposals on:
(C) any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced (emphasis added)
Always check the local rules for additional guidance. As an example, the US District Court for the Southern District of Indiana has a section on form of production in its model ESI Supplement to Case Management Plan.
Rule 34 covers production format in the context of requests and objections
Form of production may also be addressed in written requests for production and responses under Rule 34. Although not the norm, requests for production may be served before the Rule 26(f) conference.
The requirements of Rule 34 can also come into play when the parties agree to table the production format discussion during the meet and confer. Parties that fail to address production format at all as required by Rule 26 run into Rule 34 by default.
Rule 34(b) provides that a party may specify a production format in the request. If no format is specified or the responding party objects to the format, the response must state the intended form of production. Both request and response may be broken out into multiple formats for different ESI types.
Objections must be timely under Rule 34; ordinarily that means within 30 days of the request. Courts have held that untimely objections are waived.
Format objections must also be made with specificity. The parties should confer about objections and alternatives. If necessary, they should bring the issue before the court – preferably before production starts.
Not addressing form of production has serious consequences
Rule 34(b) includes another very important provision:
(2)(E) Producing the Documents or Electronically Stored Information.
(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and
(iii) A party need not produce the same electronically stored information in more than one form. (emphasis added)
Many states also have this requirement. For instance, Indiana Trial Rule 34 tracks the language of the federal rule. Other states use different wording but impose the same substantive provision.
As long as the production is “reasonably usable” (in the judge’s determination) parties who don’t request a format have to make do with whatever they get. This is true even if they could have gotten a more usable format and additional data simply by asking.
The takeaway is that litigators ignore production format at their peril.
Not following the rules on form of production can have significant consequences. For example, having to re-format a production before it can be loaded into a review database or OCR files that were produced in non-searchable format. These are common scenarios that result in unnecessary delay and expense.
The worst-case scenario however is discoverable information not being produced at all, simply because the production specifications don’t require it. It’s critical to address production format both clearly and early in the case.