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I wish I could say take two aspirin and call me in the morning, but solving the technological headaches attorneys will undoubtedly grapple with under the framework of the new Federal Rules of Civil Procedure will require a much stronger dose of medicine, not to mention a dose of reality. The reality of the situation is that the changes to the FRCP will be effective Dec. 1, though Congress retains the power to modify the rules before that date. The rule changes focus on establishing protocols for the exchange of Electronically Stored Information during discovery. Not to be outdone, the California rule makers have recommended amendments to California Rule of Court 212 which addresses many of the same issues as the new Federal Rules. If the proposed amendments to California Rule of Court 212 are adopted in their current form and go into effect in 2007, state attorneys will be forced to address several electronic discovery issues by next year regardless of whether the matter is venued in state or federal court. Talk about an e-discovery hangover. This begs the question, what technological headaches should you expect, assuming the new rules are adopted, and what is the proper course of treatment? Unfortunately, unless you fancy yourself a technolawyer or have a degree in management information systems, your treatment options are probably limited to learning how to navigate the framework of the new rules. Let’s face it � most attorneys don’t have technology backgrounds and most information technology folks don’t have legal backgrounds. However, in today’s world of electronically generated information, litigation attorneys arguably have an ethical obligation to understand basic technological issues or to rely on the expertise of other lawyers in order to effectively represent their clients. Headaches and other maladies can be prevented by learning basic technology terms, formulating case-specific electronic discovery plans for each new matter and recognizing potential technology issues early in the discovery process. This article identifies some of the problems unprepared litigators and their clients can expect while maneuvering through the new document production provisions of the proposed rules and equips the savvy litigator with tools necessary to control client expense, increase efficiency and leverage the new rules to their advantage. ARE NATIVE DOCUMENT PRODUCTIONS MAKING YOU RESTLESS? Requiring production of electronic files in their original or “native format” is becoming more common among the judiciary in some jurisdictions. For example, the U.S. District Court for the Northern District of California upheld a magistrate’s decision in In re Verisign, Inc. Securities Litigation by ordering responsive electronic documents stored in native format during the usual course of business to be produced in native file format. See also Nova Measuring Instruments Ltd. v. Nanometrics, Inc., 417 F.Supp.2d 1121, 2006 WL 524708 (N.D. Cal. Mar. 6, 2006); Treppel v. Biovail Corp., 233 F.R.D. 363 (S.D.N.Y. 2006); Hagenbuch v. 3B6 Sistemi Elettronici Industriali S.R.L., 2006 WL 665005 (N.D. Ill. Mar. 8, 2006). The fact that many courts have ordered parties to produce native files does not mean the current or proposed rules require native file production. If adopted, Rule 26(f) and California Rule of Court 212 will require parties to confer early about production formats and Rule 34(b) will afford parties the opportunity to propose production formats. Understanding and identifying the ideal production format for each case is critical to avoid causing your client migraines by unnecessarily racking up discovery-related expenses. PRODUCTION FORMATS 101 In addition to native files, other common production formats include paper and electronic image files. As explained more fully below, parties sometimes convert native files to electronic image files to streamline document review. Native files are typically searchable electronic files that have not been converted to a different format. For example, a party ordered to produce Word and Excel files natively would be obligated to produce those files as Word and Excel files in order to comply with the order. On the other hand, common electronic image file production formats like TIFF (tagged image file format) are more like digital photographs of paper documents. Some attorneys unwittingly agree to TIFF productions not realizing that converting paper or native files to TIFF format typically renders the new file unsearchable. Conversion to TIFF also results in loss of potentially important metadata information contained in the original native file such as the file creation, modification and last accessed dates. TIFF files can be rendered searchable using text extraction or optical character recognition (OCR) software and metadata information lost during native file conversion can be re-associated with the TIFF file through creation of cross-reference files. However, don’t expect opposing counsel to do you any favors by providing searchable metadata and TIFF files voluntarily. SELECTING THE CORRECT PRODUCTION FORMAT If the above discussion about production formats left you wheezing, spinning or gasping for breath, you’re only one of many attorneys on the verge of a technophobia headache. Simply stated, attorneys must consider the expense associated with both production and review as well as the type of information sought during the case in order to select the right production format. The analysis should include evaluation of the following factors for each new matter:

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