This week’s decision in Partners Insight, LLC v. Gill (M.D. Fla., October 28, 2024) tackles an often-overlooked yet essential aspect of ediscovery: manner of production. While much of our focus in ediscovery tends to be on the content and format of productions, manner of production—how documents are delivered and organized—can significantly impact your case preparation and strategy. Let’s break down the case, the Court’s analysis, and key takeaways for litigators.
Understanding Manner of Production
Manner of production refers to two critical components:
- Delivery Method: How you receive the production (e.g., secure file transfer, ShareFile links, or encrypted hard drives).
- Organization of Documents: How the data is structured—whether it’s a jumbled collection or organized by custodian, date, or another logical framework.
In Partners Insight, the defendants produced 180,000+ documents via electronic format with metadata but failed to organize the production in a way the plaintiffs found usable. The plaintiffs argued that this “document dump” violated their rights under Federal Rule of Civil Procedure 34(b)(2)(e), which addresses both the form and manner of production.
The Court’s Analysis
The Court considered the obligations under Rule 34(b)(2)(e), which includes three key provisions:
- Documents must be produced as kept in the usual course of business or labeled to correspond to requests.
- If no specific form is requested, documents can be produced in a reasonably usable format.
- A party is not required to produce the same information in more than one form.
The Court noted that many jurisdictions treat Rule 34(b)(2)(e)(i) (manner of production) and Rule 34(b)(2)(e)(ii) (form of production) as applying jointly to electronically stored information (ESI). This means that both organization and format must preserve the “functional utility” of the production.
In this case, however, the Court determined that the defendants’ production—TIFF files with load files containing metadata—satisfied both provisions. The plaintiffs had not provided evidence that the production was unsearchable or that metadata was missing, which ultimately led to the denial of their motion to compel.
Key Takeaways for Litigators
1. Think Strategically About Manner of Production
Receiving 180,000 documents in a single folder with minimal organization can hinder your ability to locate critical evidence. Negotiating the manner of production upfront—whether through an ESI protocol or detailed discovery requests—saves time and costs later. Consider the following when requesting productions:
- Request metadata fields tailored to the data source (e.g., Slack, Teams, text messages).
- Specify how documents should be organized (by custodian, date, or topic).
2. Request Native Format When Necessary
Native production retains the functional utility of ESI, allowing for a more seamless review. Here, the Court accepted TIFF files with metadata as sufficient, but native files often provide more context and usability. If you want native format, ask for it explicitly in your discovery requests or ESI protocol. Failure to do so may limit your ability to challenge the production later.
3. Build a Strong Factual Record
Discovery motions are won and lost on the strength of the factual record. The plaintiffs in this case failed to establish why the defendants’ production was inadequate or how the lack of organization harmed their case preparation. When challenging productions, provide:
- Evidence of missing or unusable metadata.
- Examples of inefficiencies caused by disorganized data.
- Declarations from ediscovery experts to support your arguments.
4. Negotiate for Efficiency
The sheer volume of ESI in modern litigation requires strategic negotiation to control costs. For instance, if text messages are a key data source, ensure they are exported with contact names and organized by custodian. Negotiate delivery methods that minimize downtime, such as secure file transfer protocols that can handle large data sets efficiently.
5. Stay Informed About Local Rules and Trends
While the Federal Rules do not mandate production organized by request, California requires productions to meet this standard, adding complexity and cost. Understanding local rules and trends can help you anticipate challenges and adjust your strategy accordingly.
Conclusion
The decision in Partners Insight underscores the importance of proactively addressing manner of production in discovery planning. Failing to specify your needs in advance or to build a strong factual record can leave you at the mercy of the producing party’s decisions. As litigators, we must think strategically about both the form and organization of ESI to ensure efficient, cost-effective discovery.
By taking control of manner of production from the outset, you can set your case up for success. And as always, if you need guidance, eDiscovery Assistant is here to help you navigate the complexities of ediscovery with confidence.
She is a co-author of Electronic Discovery and Records and Information Management, and host of Case of the Week at eDiscovery Assistant. As Principal at ESI Attorneys, Kelly manages the boutique eDiscovery and information law firm that acts as operational business partners with its clients to advise law firms, corporations, and municipalities on all areas of electronic information including eDiscovery, privacy, cybersecurity, and information governance.
Kelly is also the CEO of eDiscovery Assistant — a SaaS-based practical resource for litigators handling eDiscovery — that curates discovery decisions, rules, and additional content. She is developing an online academy to provide on-demand education for lawyers and legal support professionals to stay abreast of changes in the law and technology that affect litigation and clients’ obligations to respond.
You can reach Kelly at [email protected], join her Facebook community group at Let’s Talk eDiscovery, or connect with her on Twitter @kellytwigger.