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The most recent federal decision [FOOTNOTE 1] weighing in on the hot-button issue of discovery of metadata [FOOTNOTE 2] and documents in their “native format,” i.e., “the way it is stored and used in the normal course of business,” [FOOTNOTE 3] offers some simple, common-sense advice on how to best achieve that discovery objective: A sk for it. Up front. Otherwise, if you ask too late or have already received the documents in another format, you may be out of luck. In Autotech Technologies LP v. Automationdirect.com Inc., No. 05 C 5488, 2008 WL 902957 (N.D. Ill. April 2, 2008), defendant ADC filed a motion to compel Autotech to produce an electronic copy of a document it had already produced in PDF and paper format. ADC claimed that Autotech’s production of this document in non-native format was insufficient, because the formats in which Autotech produced the document lacked the accompanying, underlying metadata, including when the document was: (1) created; (2) modified; and (3) designated confidential. ADC, in turn, claimed that it had already produced the document in question in Microsoft Word format and thus fulfilled its discovery obligations. While the document appeared to be lacking metadata, a chronological list of changes to the document could be viewed on the face of the document itself, in a section called “Document Modification History.” [FOOTNOTE 4] As the court explained, Rule 34(b)(2)(E) of the Federal Rules of Civil Procedure governs the production of electronically stored information:
(E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information: (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (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. [FOOTNOTE 5]

As ADC did not specify the form of production it wished, Autotech had the option of producing the document in either: (1) the form it was ordinarily maintained; or (2) a reasonably usable form. In the Form Ordinarily Maintained

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