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BUSINESS LITAGATION FEATURE

Products Liability Litigation, 279 F.R.D. 447, Attorneys should not, however, believe productions text-searchable by preserving
449 S.D.Ohio (2012). The problem with they satisfy Civ.R. 34’s “reasonably useable” extracted or OCR text in separate TXT files
this solution—beyond the fact that most requirement merely by producing all ESI corresponding to the images. One also can
attorneys find native ESI to be impractical that can be imaged in PDF or TIFF. At a make productions metadata-searchable by
to work with or present as evidence—is minimum, a “reasonably useable” imaged preserving relevant metadata in a separate
that often one cannot segregate the relevant production must substantially preserve the index. Typically, a metadata index is
information from irrelevant, sensitive, or formatting (i.e. appearance) of the native ESI. produced as a DAT or CSV load file and
privileged information without converting This means one should image ESI directly lists each document by Bates-number(s),
the ESI into a non-native form. So although from native ESI and not from a degraded custodian(s) or source(s), and, as available,
producing all ESI in native may satisfy intermediate form, such as a re-scanned its: email subject, sender, and recipients;
Civ.R. 34(B), attorneys and courts should hardcopy printout. The images also should date and time sent, created, or modified; file
consider it a solution of last resort because be “logically unitized,” such that each PDF name, extension, and path; and hash value.
it risks infringing the responding party’s image reflects a separate document or, if Critically for Civ.R. 34’s “reasonably
rights and obligations beyond Civ.R. 34. rendered into single-page TIFFs, the first and useable” requirement, the receiving party
Accord Fasteners for Retail, Inc. v. DeJohn, last page of each document are preserved in a needs no specialized software to use imaged
2014-Ohio-1729 (8th Dist.) (holding corresponding “load file.” productions made with these specifications.
that an order compelling production of Moreover, if the native ESI is searchable For example, one can quickly scroll through
ESI in a manner that risked disclosing by text or metadata, the imaged production a TIFF production using Windows File
privileged and confidential information should be searchable by text or metadata Explorer with its “Extra Large Icons” and
was immediately appealable and abused the too. See 2006 Staff Notes, Fed.R.Civ.P. 34. “Preview Pane” options activated. One can
court’s discretion). One can make individual PDF images text- use File Explorer’s search to run text searches
searchable during the imaging process or across an entire production if TXT files are
When producing ESI in non-native form, by running optical character recognition produced. One can search DAT and CSV
attorneys should preserve the appearance (OCR). Alternatively, one can make entire indexes in Windows Notepad or, with some
and searchability of the native ESI.
Most attorneys produce ESI in static-image
form (e.g. PDF or TIFF/JPG), with select ESI
produced in native or near-native form only
as necessary. Imaged productions minimize
the practical and legal complications In litigation, if you aren’t
associated with native ESI and, if not more
difficult to use than the native ESI, also thinking three steps ahead,
can satisfy Civ.R. 34(B)(3). Thus, imaged
productions are the “default standard” for you’re already behind.
courts in the Northern District of Ohio
and are acceptable throughout Ohio. See Our litigators foresee issues before
N.D.Ohio Local Rules, Appendix K, §6 they become problems.
(requiring parties to produce ESI only as
image files with original formatting and
metadata preserved unless “particularized
need” is shown for native files); see also In
re Porsche, 279 F.R.D. at 449 footnote 5 (“if
the requesting party does not specify a form,
the producing party is within its right to
produce the ESI in static image form[...]”).
Most common ESI types can be imaged.
Emails, word processing files, native PDFs,
slide presentations, photos, and text messages
are examples of ESI amenable to imaging.
ESI that cannot be imaged but that should
be produced in native or near-native form
include videos, audio files, and 3D drawings.
Electronic spreadsheets, database ESI,
websites, and unusual ESI types may or may FrantzWard.com
not be imageable and should be handled on
a case-by-case basis.
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