Extract from Elizabeth Guthrie’s article “Demystifying Ediscovery Production Formats”
When it comes to ediscovery production, it’s absolutely advantageous to keep the end goal in mind from the outset. The duty to produce is explicitly outlined in the Federal Rules of Civil Procedure and most analogous State Rules. Although it’s the final step in discovery, it’s not something that should be put off until the end – you should be considering your final production format throughout collection, data processing, and document review.
Interestingly, the Rules of Civil Procedure stop short of specifying a particular format for producing electronically stored information (ESI) and instead put the burden upon each party to “specify the form or forms in which electronically stored information is to be produced.”
That means you get what you ask for – but if you don’t ask for a specific format, then you’re stuck with whatever the other side decides to dump on you. (Technically, ESI should be produced in the “form or forms in which it is ordinarily maintained,” but that dictate often seems to be conveniently overlooked.)
In order to “specify the form or forms” of ESI production, you’ll need to actually have a discussion with opposing counsel. Attorneys seem to be hesitant to do this, maybe because they don’t know what to ask for, or maybe they’re nervous that reciprocal requests will be placed on them. Regardless of the reasons, you’re only wasting time and increasing costs when you avoid this step.
