In the year leading up to the effective date of the new federal rules there were a flurry of published decisions on e-discovery issues, many of which interpreted or expanded on the Zubulake decisions from the Southern District of New York. Despite the fact that the new rules have changed the foundation on which courts will decide cases from now on, pre-new rule decisions are significant because they form the body of precedent practitioners can rely on when arguing to the court or opposing counsel about how the new rules should be applied.
Forms of production principles
The technology regarding form of production is constantly changing, making it difficult to draw too much guidance from any particular decision. Here are some general principles drawn from case law on form of production.
Courts may require production in a searchable format, but "searchable" does not necessarily mean native format. When the parties can't agree on the format of production, courts seem to be relying on the general principle that the information should be in a form that is nearly -- but not necessarily exactly -- as useable as it was before it was collected. For most purposes that means that the information you produce must be searchable. In one of the leading "native format" cases, although the court denied production in native format, it went to some length to ensure that the requesting party received some searchable information. In Priceline.com Inc. Securities Litigation, 233 F.R.D. 88 (D. Conn. 2005), the court allowed the defendant to produce documents in TIFF format to accommodate Bates numbering and privilege redactions, but required that the defendant produce a searchable metadata database for all of the documents.
In most of the pre-December 2006 cases in which native format was ordered, the producing party had not offered production in a searchable format. For example, in Hagenbuch v. 3B6 Sistemi Elettronici Industriali, 2006 WL 665005 (N.D. Ill. March 8, 2006), the court ordered native production, and rejected TIFF production, based in part on the lack of searchability of the TIFF format offered, and also based on the lack of color and clarity, and metadata, in the production format offered. Similarly, in Verisign Inc. Securities Litigation, 2004 WL 2445243 (N.D.Cal. 2004), the court ordered production of .pst files where the TIFF versions producing parties offered were not searchable.