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ESI Discovery Best Practices, Part 1 – Start with the Rules

Electronically Stored Information (ESI) has become the litigation topic de jure.  There is so much information about ESI, however, it is easy to overlook the best place to start when discussing ESI best practices — the rules.  My discussion here will focus on the federal rules of civil procedure, and keep in mind that many states have similar or identical rules.  However, be sure to check with your jurisdiction, because some states have completely different rules governing discovery of ESI.

The two primary rules regarding ESI are Rules 26 and 34.  Rule 26 contains general provisions regarding discovery, while Rule 34 governs requests for production of documents.  We start with the premise that relevant ESI must be disclosed.  However, Rule 26 imposes a caveat to that premise, and provides that ESI that is not reasonably accessible because of undue burden or cost is not required to be produced.  Also, you should keep in mind that preservation and production are different.  So, just because a party identifies a source of ESI as not reasonably accessible, this does not relieve that party of the duties to preserve evidence.

A producing party can file a motion for protective order requesting that discovery be limited because the ESI is not reasonably accessible based on undue burden or cost, but keep in mind that in doing so, you need to describe the information sufficiently enough so that the requesting party can determine whether to move to compel. The better you build a record of undue burden or costs, the better served you will be if fighting this issue before a trial court or appellate court later.

After reviewing Rule 26’s general provisions, you should next turn to Rule 34, which governs actual production or disclosure of ESI.  The rule specifically contemplates the parties discussing forms of production at Rule 26(f) (discovery) conferences.  Keep in mind that in e-discovery, production can take place in many forms, with form referring to the format of the ESI.  While parties may still request ESI be produced in hard (paper) copies, typically the form of production for ESI is an image file (.pdf/.tif), a load file (an image with specified metadata), or native.  An in‑depth discussion of the various forms of possible production is beyond the scope of this discussion, but keep in mind that although Rule 34(b) does allow a party to request a copy of ESI in any medium, production should normally be as the information is “kept in the ordinary course of business and labeled to correspond to the categories in the request.”