Are Supermarket Bag Boys Smarter than many Litigators?

A supermarket bag boy will ask you if you want paper or plastic before they bag your groceries, not after. By contrast, many litigators today do not ask about form of production, paper or plastic, before they produce ESI. Instead, they just pack the information in the form that they want to produce, usually paper. 

They think this gives them an advantage over the requesting party for many reasons, but primarily because of metadata. They do not understand metadata found in original native files produced on plastic CDS, they only fear it. But they do know that if they produce paper printouts of computer files, they can hide their client's metadata. Thus they want to deny their adversary metadata in a kind of knee-jerk reaction. 

In spite of the much heralded 2006 Federal Rule Amendments, this don't ask, don't tell strategy is still prevailant in American courts. Most litigators do not comply with the dictates and intent of Rule 26(f) FRCP and discuss this and other e-discovery issues at the mandatory attorney conference. When it comes to e-discovery, they put the bags on their head. 

For more on this topic and a review of five recent cases that help make these points, see my blog this week:  Paper or Plastic? The Wisdom of Supermarket Bag Boys and the Need for Local Rules. I conclude the commentary with a suggestion for a local rule requiring attorneys to make specific reports on ESI in their Rue 26(f) case management report.