Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Albert Einstein posited that “Everything should be made as simple as possible . . . but not simpler.” So consider this simple question: When you seek electronic discovery, do you want all of the data or just some of them? The answer seems simple. You want production of electronic data in their most robust format, in the “native” format in which your adversary has created and maintained them. Maybe. That simple answer simply may not work in every case. As they exist today, the Federal Rules of Civil Procedure require and permit discovery of documents in only one of two forms: as they are maintained in the ordinary course of business or organized and labeled to correspond to the categories requested. Barring congressional intervention, the proposed amendments due to become effective on Dec. 1, 2006, will specifically add “electronically stored information” as a category of things distinct from “documents” that can be requested under Rule 34; and, for the first time, the new rule will allow the requesting party to specify the form in which electronic information should be produced. And the new rule will add an important new wrinkle to the responding party’s obligation-production must be made “in a form or forms that are reasonably usable.” Now that is a lolapalooza of a change. Suppose you serve document requests upon the ItsGreekToMe Company, which maintains all of its business records in, you guessed it, Greek. Under the current Rule 34, they comply with your requests by turning over the files as maintained in the ordinary course; translation is your problem. But electronic files-those have to be “usable,” so it’s no big stretch to foresee that a court might put the translation on the producing party. Electronic files are oftenin an unusable form The proposed rule, of course, did not envision Greeks bearing documents. The real issue is that electronic files-created by and for English-speaking people-are often maintained in a form that makes them unusable. Most companies store historical e-mails on backup tapes in a form that is useless unless, at great expense, the data are restored. So expect, under the new rule, that requesting parties will, for example, specify that they receive electronic data “in a form which maintains the integrity and the entirety of the data and metadata and is readable and searchable in Word or Excel.” Responding parties will balk and say that the cost of conversion or restoration should be shifted to the requesting party. They will offer to produce the files in hard-copy prints or static image files. OK, Einstein, let’s keep it simple. Let’s say your adversary has but one responsive electronic file, a five-page memorandum created and saved in Microsoft Word; in its paperless office, no hard copies exist. How would you like it? Do you want hard copy? Do you want it converted into a digital image file like a .tiff or .pdf file that can be loaded into your firm’s database software? Or do you want the Word file in its native format? Well, duh-you want the Word file. If you have that, you can print all the copies you want; and you get all the lovely metadata that are not available in any other form. Metadata. We do not bother to define the term, since no definition appears necessary. We all know this word. From the Greek “meta,” meaning “over” and the Latin “data,” meaning, well, “data,” “metadata” means data about data. Um, maybe not. “Metadata” is actually the registered trademark of Metadata Corp. Legend has it that company founder Jack E. Myers coined the term “metadata” in 1969, intentionally designing it to be a term with no particular meaning. The word Metadata was registered in the U.S. Patent and Trademark Office in 1986. Ken Withers of the Sedona Conference uses the term “non-apparent information,” which might be more accurate and certainly is safer from a trademark infringement perspective, but it’s a mouthful; and “metadata” has a nice ring to it. So we’re going to make fair use of the term. And in the right case, you can make great use of metadata. Earlier this year, the news was abuzz with reports that the New England Journal of Medicine had used simple Word functions to discover that an article submitted for publication by a major drug manufacturer had deleted from an earlier draft the revelation of a study linking its arthritis drug to an increased risk of heart attacks. If that doesn’t bring a moist smile to a trial lawyer’s dreams, what would? The reviewing functions make any Word document a potential gold mine. Even if there is nothing sinister about the process from draft to final document, the electronic file is potentially far more useful than its paper or image counterpart. Let’s assume that the memo is not five pages, but 5,000. You will read it carefully, highlighting your favorite passages on the paper copy. And at trial, something will come up that makes you want to find and focus on a particular word or phrase for cross that assumed significance during the direct examination but which never occurred to you or your highlighter before. Fat chance of quickly finding what you know is there, buried in the 5,000 hard-copy pages. But with the Word file, type in the word you need to find in the “Find” function and voil�. Paper is not searchable. Pdf files are searchable, but not so much. Take our word for it, Word files are good to have. Let’s say that the document is a spreadsheet rather than a memo. Do you want file in hard copy, image or the native Excel? Duh. Same search issues. But with the actual Excel file, you create endless possibilities. You can re-sort the data. You can verify-or attack-the formulae used to calculate numbers. You can tweak numbers or formulae to adapt to changed facts or hypotheses. But your opponent did not roll off a radish truck. You are not going to get the gold voluntarily. She will produce paper or .tiff files. If compelled to produce the native format files, she will scrub them. Programs such as iScrub will neatly remove all metadata and revision history from a file. Even without special software, the Word and Excel programs allow you, with very little effort, to save a copy of a file that deletes prior history; and in Excel files, it is possible to hide data or lock data cells so that they cannot be viewed or manipulated. Even with the existing Rule 34, courts have not been shy about addressing such maneuvers. In Williams v. Sprint/United Management Co., 230 F.R.D. 640 (D. Kan. 2005), Sprint produced scrubbed and locked Word and Excel files. The court acknowledged that the Sedona Principles for Electronic Document Production offered guidance in the form of Principle 9 (“absent a showing of special need and relevance a responding party should not be required to preserve, review, or produce deleted, shadowed, fragmented, or residual data or documents”), and 12 (“unless it is material to resolving the dispute, there is no obligation to preserve and produce metadata absent agreement of the parties or order of the court”). Guidance, but not where the court wanted to go. The metadata had to be produced; the locks unlocked: “[W]hen a party is ordered to produce electronic documents as they are maintained in the ordinary course of business, the producing party should produce the electronic documents with their metadata intact, unless that party timely objects to production of metadata, the parties agree that the metadata should not be produced, or the producing party requests a protective order. The initial burden with regard to the disclosure of the metadata would therefore be placed on the party to whom the request or order to produce is directed.” No cookie-cutter answer on issue of native format But if it seems from all of this that you ought always to ask for documents in native format with its full complement of metadata, well, whoa. There is no cookie-cutter answer to this question-there will be times when you want native format, times you do not; there will be times when metadata are helpful, times when they are not. Your opponent may have electronic correspondence files that go back 10 years, created in WordPerfect and Word and whatever; it may have spreadsheets created in Lotus and Excel and whatsis; it may have database files for software from companies that no longer exist; it may have data designed to run on P.C., Mac and Linux platforms. Do you really want native format? Unless you have all of that application and operating software, and unless you know how to use all of it, the files will not be usable. Do you really want the metadata? Do you really want the ability to manipulate the data you receive? The problem with getting files you can manipulate is-you can manipulate them. So when you go to use them at trial, how will you prove that the smoking gun electronic file you want to show the jury is the same file produced by the defendant? Moreover, the mere act of requesting production of native files can result in the inadvertent alteration of those files. When the responding party opens the file to review it for possible privilege, that innocent act can alter metadata or even substance. For example, if a spreadsheet has an embedded calculation that computes interest on some amount through the current date (using the “=TODAY()” function), the act of opening the file will recompute the interest. So there is no single or simple answer. Which is why the new rules will require a meet and confer at the outset of the litigation to discuss these issues. It’s simple really. It sounds good to go native-and it might be-but not in all cases. Jerold S. Solovy is chairman of Chicago’s Jenner & Block, and a past chair of the ABA Discovery and Trial Practice committees. He can be reached at [email protected]. Robert L. Byman is a partner at Jenner & Block, and a past chair of the ACTL Federal Civil Procedure Committee. He can be reached at [email protected].

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.