pAper DiSCOVery iS DeAD ( Or SOOn TO Be )
Technology Section Chairs : Mike Hooker - Phelps Dunbar , LLP & Ryan McGee - Morgan & Morgan , PA
Despite the pervasiveness of digitization , many attorneys still think of discovery as requesting and producing paper documents instead of eSi .
In general , companies have discarded the rows of cabinets with accordion wallets and file folders that safeguarded paper documents . Data and information are now maintained in digital “ files ” that are stored in binary ( 1s and 0s ) form , using software such as Tagged Image File Format ( TIFF ), portable display format ( PDF ), electronic mail , text messages , databases , and other similar storage methods , all of which is electronically-stored information ( ESI ).
Despite the pervasiveness of digitization , many attorneys still think of discovery as requesting and producing paper documents instead of ESI . For example , attorneys will ask for “ all files ” or the “ complete file ” related to a topic , person , or entity . With traditional paper discovery , such a request was understood in the profession as requesting the paper documents in the file folder stored in the cabinet located at a specific building . In the digital age , such a request might encompass program files , operating system files , property files , hidden files , archived files , or copies of “ files ” stored on several servers in several locations , even overseas . A request for “ all files ” on a computer may generate
an objection as ambiguous , overly broad , and unduly burdensome depending on the case .
The confusion related to the distinction between discovery of paper and ESI may stem from how the rules of procedure distinguish between the two . Under Florida Rules of Civil Procedure Rule 1.350 , when producing documents , the producing party shall either produce them as they are kept in the usual course of business or identify them to correspond with the categories in the request . The rule then states that , “ If a request for electronically stored information does not specify the form of production , the producing party must produce the information in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms .” But what if the requested documents were all stored as ESI ? Should the responding party produce them as they were kept ( in native ESI format ) or in paper form ( which most likely means the ESI will be reduced to TIFF or PDF , thus stripping relevant metadata )? If produced as paper ( or a scanned equivalent ), the responding party must perform the laborious task of identifying the documents by category .
There has been some debate about whether the requirement to identify documents to correspond with categories is applicable when ESI has been produced as it is ordinarily maintained or in a usable form . For some , the obvious answer is “ no ” — the obligation to categorize “ documents ” does not apply to ESI produced in its proper format .
With the widespread adoption of remote work and the need for mobile access to information , we can expect the pace at which data is digitized to accelerate rapidly . Companies , including law firms , are now opting to scan all paper records into bytes on a computer for easier storage and access . Whether parties engage in “ paper ” or ESI discovery might become a distinction without a difference . Eventually , all information will be stored electronically , thus ending “ paper discovery ” as we now know it . n
Author : Robert Stines - Freeborn & Peters LLP
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