ESI: Form or Forms of Production
In modern litigation, electronically stored information (ESI) is often the centerpiece of discovery. Understanding how this information is requested, produced, and reviewed can make or break a case. One of the most important considerations in this process is the form of production.
Rule 34 of the Ohio Rules of Civil Procedure, and its federal counterpart, gives requesting parties the ability to specify the format in which ESI must be produced. Done correctly, this choice can streamline review, preserve valuable metadata, and lower costs. For many legal teams, the mechanics of preparing electronic data for production can be as strategic as the evidence itself.
Why Specify ESI Forms of Production
The “form” of production simply means the file type or structure in which ESI is delivered. Native files, for example, are preserved in the same format in which they were originally created, even when they are ultimately produced in review-friendly formats such as TIFF or PDF with associated metadata and text files. A Microsoft Word letter exists as a “.doc” file, complete with the text, file name, and embedded metadata. Preserving documents in native form ensures that critical information about the file’s history, authorship, and use remains intact, even when the data is later processed and produced in database-ready formats that expose that metadata for review.
Requesting ESI in specific forms has two key benefits:
- Offers transparency on metadata fields: By requesting preservation of native files and production of specified metadata fields, counsel can test opposing parties’ knowledge of what metadata exists, which fields are relevant, and how that data should be produced in a usable form.
- Controlling costs: Metadata fields enable the electronic organization, search, and filtering of large volumes of ESI. Without them, counsel may be left with a time-consuming and expensive manual review.
Requesting Metadata and File Formats
Under Rule 34, a party may request that documents be produced in particular formats. Word files for internal memoranda, Excel spreadsheets for financial records, or another agreed-upon standard. What the rule does not allow is requiring the same data in multiple forms. If the requested form is overly burdensome or costly, the producing party may object and negotiate alternatives or seek relief from the court. This negotiation is often where ESI production specifications come into play.
Understanding what to request begins with understanding what metadata is. Metadata is information created by the operating system, file system, or application software that describes or relates to the content of a file. Courts, including the Northern District of Ohio, often treat metadata as distinct from content. Counsel should therefore be prepared to justify why specific fields, such as “creation date” or “revision number”, are reasonably necessary to the ESI production process.
Key Metadata Fields in Practice
Consider a simple Word document, “Book Draft.doc.” Beyond its visible text, the file carries metadata that may include:
- File type and location: Identifying the software used to create the file and where it was saved.
- File size: Useful for estimating processing or transmission time.
- Created, modified, and accessed dates. These timestamps can reveal when the file was first saved, last changed, or last opened.
- Statistics. Embedded information such as total editing time, revision numbers, and print dates.
These fields can be powerful for organizing large volumes of documents, establishing timelines, or uncovering hidden versions. At the same time, they can be confusing. Dates in different metadata tabs may not align, or copied files may appear to have been created later than they truly were. Counsel who understand these nuances are better equipped to negotiate forms of ESI production and defend their positions in court.
ESI Production Services and Device-Specific Metadata
Metadata is not limited to office documents. Digital images, for example, can carry fields for the camera make and model, resolution, focal length, and even whether a flash was used. These details can be invaluable in certain matters, but may also present authentication challenges if they are manipulated. Different devices (computers, cameras, smartphones) generate different sets of metadata, and each can become important depending on the facts of a case.
Strategic Considerations in ESI Productions
Courts generally will not compel production of metadata if it was not specifically requested at the outset. This makes timing critical: counsel should identify relevant metadata fields early, explain their relevance to the case, and include them in discovery requests. Failing to do so can increase costs, delay review, and potentially undermine defensibility.
When negotiating forms of production, consider:
- Which metadata fields are necessary to make the data reasonably useful
- Whether preservation of native files is sufficient, or whether limited native production is needed for specific file types to ensure metadata integrity
- How different file formats will affect review efficiency and cost
- How to protect privileged or sensitive metadata fields, such as user-added comments
How ESI Forms of Production Shape Case Strategy
The form of production influences efficiency, defensibility, and ultimately the strength of your case. From preserving metadata fields to selecting formats that streamline review, thoughtful decisions early in discovery can save costs and prevent disputes later. Understanding the implications of ESI production specifications ensures that evidence remains both useful and reliable in the courtroom.
At ArcherHall, we guide law firms, corporations, and government agencies through the intricacies of eDiscovery. Our certified experts understand not only how to collect and process data, but also how metadata and file formats can impact case strategy. From specifying production forms under Rule 34 to testifying on the defensibility of collection methods, we provide insight and authoritative knowledge for your case.
