Rule 34 & Form of Production

Over the next several weeks Arkfeld's E-Discovery Alert will focus on the strategy and tactics for handling sixteen specific ESI issues throughout pretrial discovery. Whether it is a "meet and confer" or request for production these are the critical issues to focus in requesting or producing ESI. The legal issue excerpts will be derived from the Best Practices Guide for ESI Pretrial Discovery - Strategy and Tactics (2008-2009). The Guide is cross-referenced and hyperlinked with the Arkfeld on Electronic Discovery and Evidence (2nd ed.) treatise and part of the CD-ROM.

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ISSUE:  DOES RULE 34 SET FORTH MANDATES REGARDING THE “FORM OR FORMS” OF “ELECTRONICALLY STORED INFORMATION” FOR DISCLOSURE PURPOSES?

ANSWER:  YES


Best Practices Guide for ESI Pretrial Discovery - Strategy and Tactics (2008-2009)


§ 3.10   RULE 34 AND FORM OF PRODUCTION

A.   Overview 
B.   Kept in the Usual Course of Business or Labeled 
C.   Translated Into Reasonably Usable Form or Ordinarily Maintained 
D.   Procedure Determining Form(s) of ESI 
E.   Requesting Party Strategy 
F.   Producing Party Strategy 
G.   Checklist  


A. Overview

During the early stages of electronic discovery, critical decisions have to be made as to the ESI form(s) that will be disclosed to, or received by a party. These decisions will impact, from that point forward, every aspect of the electronic discovery production and disclosure process. For example, they will determine whether the data is searchable and whether metadata is disclosed. They will also impact the cost of managing your litigation information. Failure to request or to disclose the proper ESI form(s) can have severe consequences. Read more . . .