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Requests For Production Instructions And Definitions: How To Make Them Work For You

By Bart R. Valdes, Esq.on behalf of the Electronic Discovery and Digital Evidence Committee, Business Law Section of the Florida Bar

In the ever-changing world of technology, the legal profession can be slow to adapt.  Within the past decade, the introduction and widespread adoption of social media use by individuals and corporations, as well as the use of tablets, smartphones, cloud storage, and other new technologies, has dramatically expanded the number and types of available sources of document discovery in civil litigation.  Electronically stored information (“ESI”) is everywhere today, and almost everyone is utilizing some form of paperless files, e-mails, and electronic communication.  Valuable information can be uncovered from these various sources of ESI.  However, to obtain this information in discovery, attorneys must know what to ask for and how to ask for it.  This article sets forth step-by-step list of issues to consider when drafting requests for production in today’s electronic age.

Step 1: Consider where the data or ESI is stored.

It is important to consider the types of devices and storage methods that an individual or a corporation might use which could contain discoverable information.  Such devices include not only the traditional hard storage devices (computer servers and desktop computers) but also cloud accounts, personal smartphones and tablets, social media accounts, remote servers, third-party servers, printers, copiers, other removable media (such as USB drives, SD cards and SIM cards, and discs), and wearable technology.  It is important to understand and delineate exactly where you are asking the responding party to search for the information, and be prepared to justify why you are making such a request.

Since requests for production are traditionally thought to cover documents, tangible items, and/or electronic documents prepared on a computer, it is easy for a responding party to try to avoid or sidestep an e-discovery request if the request fails to specify the type or location of the data sought.  This means that definitions and instructions are very important considerations.

Cooperation between the parties during discovery is even more essential when discussing the production of ESI.  In fact, in December of 2015, amendments to the Federal Rules of Civil Procedure took effect and now there are specific requirements to meet and confer regarding e-discovery early on in a case and when e-discovery disputes arise.  Federal courts will apply a “proportionality” analysis when dealing with the issue of e-discovery.  Florida state courts, however, may have a more expansive view of discovery.  As such, a practitioner has to factor in the differences between state and federal court rules when dealing with e-discovery issues.

Step 2: Craft your discovery request by thinking about the production and formatting of ESI.

Once you decide where to look, you have to figure out exactly what information is the most helpful to your client’s case.  This can prove to be difficult when, as with most discovery, you are not yet quite sure what discoverable data or ESI even exists.  When dealing with a party, interrogatories can assist in determining how a person or company maintains its ESI.  Additionally, interrogatories are useful in determining who is in possession of the information sought to be produced.  General knowledge of specific data, or how specific data is stored, can be extremely helpful when delineating discovery requests.

Certain media devices or media storage can easily be overlooked by a requesting or producing attorney, which may contain valuable data.  Wearable technology such as a FitBit tracks information about the wearer’s heartbeat, activity levels, sleep cycles, and other health data.  Other data that was once on a cellular telephone, such as test messages or photographs, may be located in cloud storage even if they are no longer on the cellular telephone.  Data is also stored in the hard drives on copiers and facsimile machines.

Further, e-discovery goes beyond just asking for a CD with electronic copies of documents in “.pdf” format.  Asking for ESI to be produced in a format that is searchable, useable and accessible is important.  Even if documents and e-mails are produced, it will save time and money to specify a format that will allow the requesting party to easily sort, review and use the discovery produced.  As such, the requesting party should specify the format for production.

In summary, these are just some examples of how proper instructions in discovery requests can be used to point a responding party in the right direction, and help to ensure that the requesting party gets the ESI that is most critical in a format that is useable.  Simply put, careful consideration should be given in the instructions and definitions as to the format and manner of production of the requested ESI.

Step 3: Defining the Terms of a Request for Production or Subpoena.

Properly defining the terms in a Request for Production or Subpoena for ESI can be the difference between a favorable and an unfavorable ruling on the responding party’s objection. Using proper terminology in the discovery request will assist the responsive party in understanding the request, the information sought, the type of electronic data sought, the method of retrieving and producing the data sought.  This is especially important where the responding party and/or its counsel do not have sophisticated knowledge of technological terminology, data types, and preservation methods.

There are several helpful e-discovery definitions that can be found in the Sedona Principles Glossary.[1]  Also, the International Organization for Standardization adopted a definition of ESI, which states that ESI is data or information of any kind and from any source whose temporal existence is evidenced by being stored in, or on, any electronic medium.  ESI includes traditional e-mail, memos, letters, spreadsheets, databases, documents, presentations, and other electronic formats commonly found on a computer.  It also includes systems, applications, and file associated metadata such as times stamps, revision history, authors, and file types.

Metadata is hidden information about the electronic data or file that “describes how, when, and by whom an electronic document was created, modified, and transmitted.”[2]  Metadata can be just as important in the discovery process as the actual data itself.  Metadata typically contains information such as the author of the document, when the document was last accessed or edited, and what alterations have been made to the data.[3] If this is important to an issue in the case, then the scope of the metadata to be searched and produced should be in the definitions and instructions.

A carefully crafted discovery request should include temporal and subject matter parameters to narrow the search.  It is especially important to limit or carefully define the scope of the ESI sought to increase the chances of a favorable ruling from the court.  Also, production of ESI can be costly, and, especially under the new Federal Rules of Civil Procedure, a court will analyze the proportionality of the cost of production to the needs of the case.  In looking at the cost of production, a court may also order that the costs of production are shifted to the requesting party, so a limited and well-defined request will help limit the costs that could be borne by the requesting party.

If the data you are seeking is sensitive to alteration, then the definitions and instructions should instruct a party as to how to extract, preserve, and produce such data.  Additionally, it may be necessary to seek the assistance of a qualified expert to assist in drafting the discovery requests.  This will ensure that you can properly request and authenticate the ESI you seek.

Step 4: Make sure to ask for social media discovery.

Social media is used by approximately 74 percent of all internet users, and can be a valuable source of gathering information on potential witnesses, corporate representatives, experts, parties, and even your own clients.  Further, courts are increasingly allowing parties more latitude in discovering social media information where relevant to the claims at issue.[4]  Since social media information is so readily available, especially if the user has not taken advantage of a network’s available restricted privacy settings, social media information can easily be accessed by the other side.  Even if nothing presently exists on the user’s social media, asking for legacy data is appropriate.

ESI is an important method of discovery in a case, and can provide valuable information.  Knowing what to look for, where to look, and how to request the information you seek can be the difference in accessing and using that information, and lacking important details to litigating your client’s case effectively.

[1] Cited by Daniel A. Martinez, et al., E-Discovery Primer: New Rules, New Trends, 26 No. 3 Trial Advoc. Q. 10 (2007).

[2] Embedded Information in Electronic Documents: Why Metadata Matters, LexisNexis,
applieddiscovery/lawlibrary/whitePapers/ADI_MetaData.pdf (last visited Feb. 1, 2015).

[3] Daniel A. Martinez, et al., E-Discovery Primer: New Rules, New Trends, 26 No. 3 Trial Advoc. Q. 10 (2007).

[4] Nucci v. Target Corp., 162 So. 3d 146, 153 (Fla. 4th DCA 2015).

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