FRCP 34 (b) Form of Production (E-Discovery)

To stop arguments about the form of production, FRCP 34(b) establishes protocols for how documents are produced to requesting parties.
As the requesting party, you get to choose the form of production. Typically, you want to request native files because they could have potentially damaging metadata or show the history of track changes.
Don’t forget to specify a format for ESI, because you might not otherwise like what you get from the responding party. The other party can choose a form of ESI production that’s as they ordinarily maintain it. You might not have the equipment or expertise to read the ESI easily if it’s not in a form you pick.
As the responding party, you produce the ESI in the form that’s been requested. You can object to the requesting party’s form of production and state your own format. If the requesting party opposes the suggested format, that party has to take action. But if you drag your feet in producing, the court may find that the delay wipes out your objection and then you have to hand over the ESI in the form the requesting party wants.
Ford Motor Co. v. Edgewood Props. (2009) stemmed from allegations about contaminated concrete following the demolition of a Ford plant in New Jersey. Edgewood’s initial document request called for ESI production in native format, which implies with metadata. Ford responded by informing Edgewood that it intended to produce TIFF (tagged image file format) files with accompanying searchable text instead of producing in native format. Edgewood left this disagreement over format unresolved. As such, Ford proceeded to produce its documents as TIFFs in March 2008, August 2008, and November 2008. Again, Edgewood did not disagree with the production format at these times. In January 2009, Edgewood sought to compel reproduction of Ford’s documents in native format, as originally requested. The court denied the motion. Edgewood lost its chance to control the form of production by its non-response, and the court allowed Ford to use the form they wanted. Ford counted on Edgewood’s non-response — and it worked.
Rule 34(b) also requires that the documents that you produce to your opponent be reasonably usable. Case law has further defined that to mean that you should organize, index, and identify your ESI so the documents can be read or used by the other party. What that long statement is saying
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is that you can’t data dump: You can’t dump a mess of documents on your opponent and expect him to figure out how to extract the data he needs. Some parties have tested this principle, and reconfirmed the rule was not merely a suggestion. In re Payment Card Interchange Fee & Merchant Discount Antitrust Litigation (2007), the judge ruled that producing documents in non-searchable form violates Rule 34(b). In 3M Company v. Kanbar (2007), the judge found that producing 170 boxes of unorganized data did not meet the requirements imposed by the rule.
Choosing hard copy production waives production in electronic format.

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