Dancing in the Dark: Resolving form disputes early can prevent expensive, time-consuming headaches during litigation.

http://ow.ly/6JIGf

An article by Craig Ball, Esq. published by law.com on the LTN webpage (yet another article dated October 1st...is my calendar off..third one this week that is dated in the future).

This article discusses a recent conversation Mr. Ball had at a conference regarding why counsel prefers to produce in TIFF, even when a native review has been undertaken.

The author states, "I wanted functional evidence. She wanted Bates numbers on every page. I wanted the embedded communications. She wanted to be sure I couldn't see anything she'd overlooked. We danced around for a while, but I knew when the music stopped, I might be stuck holding a disk full of .tiffs, partly due to a crucial flaw in the federal rules governing forms of ESI production."

The article discusses various steps involved in the process to request and produce ESI under the Federal Rules of Civil procedure.  The author provides a worthwhile reminder, "The Notes to Rule 34(b) of the 2006 Rules amendments make clear that the Advisory Committee appreciated the risk: "A party that responds to a discovery request by simply producing electronically stored information in a form of its choice, without identifying that form in advance of the production…runs a risk that the requesting party canshow that the produced form is not reasonably usable and that it is entitled to production of some or all of the information in an additional form."

The risk of additional production has proven insufficient to promote good practice. Five years on, disputes about forms of production are commonplace."

The conclusion of the article is also a useful note, "Requesting parties, too, shouldn't wait until the response date to know if an opponent refuses to furnish the forms sought. Press for a commitment; and, if not forthcoming, move to compel ahead of the response date. Don't wait to hear, "Why didn't you raise this before they spent all that money?""