Native Format? Not so Fast

Many aspects of eDiscovery impact IT. One of them is the question of production and presentation, where IT can be called on to produce literally millions of pages within a short amount of time. The product may be printed or electronic or both and IT must be prepared to produce it accordingly. There may be little warning. The attorneys hammer out production details in the meet-and-confer but these agreements often founder under trial pressures and judicial decisions. This means that years after a case starts, IT can be called on to quickly copy and/or print millions of pages (not an exaggeration) in either "native format" (Word, Outlook, etc.) or as graphic files. Opposing parties love to insist on native format for production since it can be considerably easier for them to search native Outlook files then thousands of print-outs or TIFF images. But just because they want it does not mean the other party must produce it.

In recent Kay Beer vs. Energy Brands, the plaintiff insisted that defendant produce a very large number of emails in their native Outlook format. There is a great deal more to this case that I will mention in another post, but briefly this request covered nearly 20 GB of potentially relevant data comprising well over half a million pages. This is a lot of email.

Energy Brands had agreed at the Rule 26 conference that if Kay Beer made a "good faith request" for relevant documents in native format then Energy Brands would do its best to comply. And Energy Brands had earlier played fast and loose with email discovery, claiming there were no relevant emails only to later discover many thousands of them. This made Kay Beer's insistence on reviewing large numbers of email understandable.

But when Kay Beer requested native format production, Energy Brands pushed back - and the judge agreed. Why?

One of the reasons was the facts of the case. The judge had already ruled in defendant's favor for all claims but one, so the scope of the case had already dwindled considerably. By the principle of proportionality, the review request was greatly out of proportion to the one claim remaining. In addition, the judge did not believe that Kay Beer's insistence on native format production was endemic to the case. He ended up quoting the Sedona Principles for Electronic Document Production:"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."

Although Outlook format would produce more than metadata, the principle remains the same: unless native format is material to judgment, one party's insistence on it is not adequate to so order. The judge found that native format was immaterial to solving the remaining claim. He also pointed out that a native Outlook production could not use Bates numbering and would be subject to alteration. In view of these concerns and the sheer size of the potentially relevant data set, he ruled that Kay Beer's demand was excessive given the merits of the remaining case.

The key point for IT? Energy Brands had worked with a third party to de-dup their initial data set, but otherwise did everything in-house. Their IT department would have been responsible for outputting hundreds of thousands of separate emails for plaintiff review. Energy Brands dodged the bullet in this case but not everyone has been so lucky. IT must be prepared to handle this type of request, and to handle it quickly. Some eDiscovery products have this capability - Attenex from FTI is an example. It's a good plan for IT to know beforehand what tools are available to them to handle different aspects of production.