Lawyer’s - Craig Ball

1 0 1 Lawyer s Guide to Forms of Production Craig Ball 2014 We are awash in digital information, and the forms in which it s produced in discovery dictate whether it is complete and functional or just a pale imitation of the original. Forms of production matter more than most lawyers appreciate, perhaps because it s difficult for lawyers to assess the full content and capability of ESI without knowing what they re missing. This article explains the significance of forms of production and lays out options to guide the reader in making sensible selections.

2 It seeks to help lawyers eschew the wasteful and outmoded practice of downgrading digital information to paper-like forms and, instead, embrace forms that function that is, forms of production that preserve the integrity, efficiency and functionality of digital evidence. Contents Lawyer s Guide to Forms of Production .. 1 Background .. 3 Growing Tension .. 3 What are the options for forms of production? .. 5 Paper .. 5 Imaged Production .. 5 Native Production .. 6 Near-Native Production .. 6 Hosted Production .. 7 Forms of Production in the Federal Rules.

3 7 Practice Tip: .. 8 The Federal Forms Cha-cha-cha .. 8 Practice Tip: .. 10 Texas Practice re: Forms of Production .. 10 Onward through the Fogg: Learning the Language of Forms .. 10 Onward through the Fogg: Load files .. 14 The Lowdown on Load Files .. 15 Onward Through the Fogg: The Case against Native .. 20 The Case Against Native .. 21 2 More on Mastering Bates Numbers .. 23 Printouts and images of ESI are not the same as ESI .. 24 Most of what s produced in discovery is never used in proceedings .. 25 Names of electronic files can be changed without altering contents.

4 26 The case against imaged 27 But what if they want imaged production? .. 28 Modern Requests for Modern Evidence .. 28 Dump the Definition of Document .. 30 Cut the Crap .. 30 Don t define a term unless you use it .. 30 Specify the forms you seek .. 31 Address Redaction .. 32 Specify the medium of production .. 33 Secure the production in transit .. 33 Don t leave the form of the load file to chance .. 33 Consider de-duplication .. 35 Exemplar Production Protocols .. 35 Onward through the Fogg: Native production of e-mail.

5 35 What is Native Production for E-mail? .. 36 Native in Transit: Text per a Protocol .. 36 Outlook and Exchange .. 37 Practice Tip: .. 37 Outlook: .. 38 MSGs .. 38 Exchange .. 39 Litmus Test for Forms that Function .. 39 Gmail .. 40 Just Get Forms that Function .. 41 Production from Databases .. 42 Gathering data on databases .. 43 NOTICE OF DEPOSITION(S) PURSUANT TO 30(b)(6) .. 43 3 Forms of Production Matter .. 45 About the Author .. 46 Appendices .. 47 Appendix 1 Broken Badly: Anderson Living Trust v. WPX Energy Production.

6 48 Appendix 2: Exemplar Production Protocol .. 55 Appendix 3: Data Delivery Standards .. 60 The currency of discovery is information, once embodied over many centuries as oral testimony and paper records. Historically in litigation, oral testimony was memorialized by official transcript and paper was faithfully copied to other paper. The law little concerned itself with forms of production because options were few and the precept that evidence be faithful to its source and complete in its content was deeply rooted in our jurisprudence.

7 To alter, destroy or degrade evidence was abhorrent it rarely occurred, and when it did, spoliation was punished severely. Then, something extraordinary happened. In barely the space of a generation, information became digital, created, communicated and recorded as a sequence of binary data termed ones and zeroes. These, in turn, manifested as encoded forms capable of reflecting the full spectrum of human creativity: pictures, sounds, text messages, e-mail, spreadsheets, presentations, databases, documents and more.

8 What were once just flat forms of information little different than paper acquired new dimensions and depth. Digital photographs hold EXIF data revealing where they were taken and by what camera. Digital spreadsheets carry formulae supporting complex calculations. Word processed documents store editorial histories and are laced with conversations between collaborators. Presentations feature animated text and rich media, including sound, video and dynamic connections to other data.

9 Databases don t store documents as much as assemble them on demand. Even conversations once the most ethereal of interactions now loiter as text messages and voice data packets traversing the internet and cellular networks. This torrent of data is itself described or bolstered by more data called metadata supporting the ability to find, use and trust digital information. All of a sudden, the forms in which information is supplied determine if it is intelligible, functional and complete. Initially, lawyers accustomed to the printed page wanted none of the digital deluge and proved adept at keeping it at bay, expending princely sums to print digital data to images approximating the appearance of paper records.

10 Many then printed these out for review and proceedings, little Background Growing Tension 4 caring about the content and utility surrendered. Lawyers loved that pages could be embossed with Bates numbers and that paper and paper-like forms, lacking the dynamic character of digital information, couldn t be plumbed for embedded content, yield metadata intelligence or be inadvertently altered. But a growing cadre of lawyers came to appreciate that electronically stored information (ESI) produced as images and load files was incomplete and ungainly.