Requests and Forms as Modern as the Evidence You Seek

Are your discovery requests still mired in a bygone world of telegrams and carbon paper? Are you getting pummeled with expenses and review challenges you need not accept? E-discovery expert Craig Ball discusses ways to revamp your requests to target electronic evidence and secure its production in utile and complete forms that will materially aid the bottom line. Learn to use requests and production protocols as modern as the evidence you seek.

The 60-minute program will begin by addressing the nature and variety of emerging electronic evidence in litigation. It will cover the common boilerplate language in form requests, and using a historical perspective, demonstrate how outdated requests and definitions are ill-suited to efficient and economical modern evidentiary formats. The program will examine fresh approaches to old tasks in the context of electronically stored information and powerfully make the case for why native productions are more efficient and cost-effective in cases of every size, as well as how to craft a practical and proportional production protocol that serves all parties' interests.

Topics covered include:

Discovery Law Practice

Agenda:

Do Forms of Production Really Matter?

Increase the quality and affordability of production by requesting enhanced forms of production
A conceptual view of the e-discovery process

The Procedural Rules Governing Gorms of Production

The Federal Rules of Civil Procedure as amended for electronic evidence
What is just, speedy, and inexpensive production?

Understanding What You're Missing in Static Productions

The aspect ratio wars: what are we missing?
What is "the evidence?"

Introduction to the TIFF+ Problem

What is TIFF+ format?

How Did We Get Into This Mess?

A history of TIFF production
How production differs when produced in TIFF format
What is native production? Why does it matter?

Cost Is the Clincher!

Comparing costs between native files, PDF files, and TIFF files
More resources for improving your requests and productions

"Don't Let the Redaction Tail Wag the Production Tail"

Dealing with redactions in modern production
Bates numbering electronically stored information
A reminder about Rule 34

Questions & Answers

Duration of this webinar: 60 minutes

Originally broadcast: June 09, 2023 12:00 PM PT

Webinar Highlights

This webinar is divided into section summaries, which you can scan for key points and then dive into the sections that interest you the most.

00:00 Introduction

The speaker, Craig Ball, has expertise in digital forensics and electronic discovery. Craig shares a story about a meeting in New Orleans, emphasizing the importance of understanding native forms of production in e-discovery. He stresses the need for lawyers to educate judges on the significance of metadata and preferred forms of production. Craig reflects on the slow progress in lawyer competence regarding forms of production, despite years of effort.

05:21 Understanding Forms of Production

Craig discusses the Electronic Discovery Reference Model (EDRM) and its role in understanding e-discovery stages. He emphasizes the importance of specifying forms of production to ensure just, speedy, and inexpensive resolutions. Craig recounts his efforts to change the language of Rule 34(b)(1) to allow specifying forms of production. He highlights the significance of choosing appropriate forms for different types of electronically stored information (ESI). Craig stresses the need for usable, searchable, and reasonably complete forms of production to avoid undue expenses.

11:19 TIFF vs. Native Formats

Craig highlights the importance of specifying forms of production, using the analogy of aspect ratio changes in movies to illustrate the impact of format on content. He argues that native files are the optimal form for electronically stored information, since they preserve the complete informational payload. Craig criticizes the use of TIFF formats, which are less functional and more costly than native formats. He explains the historical context of TIFF production and its limitations in preserving the integrity of electronic evidence. Craig emphasizes the need for native production to maintain the utility and authenticity of electronic evidence.

34:35 Practical Considerations and Cost Implications

Craig discusses the challenges of using TIFF formats, including disrupted searchability and increased costs. He explains the inefficiencies of TIFF plus production, which requires assembling multiple files to achieve searchability. Craig highlights the cost implications of using TIFF formats, which are significantly larger and more expensive than native files. He encourages lawyers to prove the cost differences themselves and provides resources to improve e-discovery practices. Craig advises against letting redaction and Bates numbering concerns dictate the choice of production format.

51:04 Best Practices for E-Discovery Requests

Craig emphasizes the importance of specifying forms of production and understanding the components of load files. He advises tailoring form specifications to the needs of the case and ensuring the usability of electronically stored information. Craig highlights the legal obligations of responding parties to provide usable forms and avoid degrading searchability. He provides resources for improving e-discovery requests and encourages lawyers to stay informed about best practices. Craig answers questions on tailoring e-discovery requests for different digital platforms and balancing privacy concerns.

01:02:13 Addressing Privacy and Cross-Border Issues

Craig discusses the complexities of cross-border e-discovery and the importance of understanding privacy regulations. He emphasizes the need for lawyers to stay current with digital evidence and discovery to serve clients effectively. Craig highlights the importance of professional development in understanding electronic evidence and avoiding costly mistakes. He encourages lawyers to be competent and proud contributors to the justice system, beyond financial motivations.

Please note this AI-generated summary provides a general overview of the webinar but may not capture all details, nuances, or the exact words of the speaker. For complete accuracy, please refer to the original webinar recording.

Continuing Legal Education (CLE) Credits

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California CLE

Status: Approved

Credits: 1.00 General

Earn Credit Until: June 8, 2025

South Carolina CLE

Status: Approved

Credits: 1.00 General

Difficulty: All Levels

Earn Credit Until: December 31, 2025

North Carolina CLE

Status: Approved

Credits: 1.00 General

Earn Credit Until: February 28, 2026

Texas CLE

Status: Approved

Credits: 1.00 General

Earn Credit Until: January 31, 2026

This presentation is approved for one hour of General CLE credit in California, South Carolina (all levels), and North Carolina. This course has been approved for Minimum Continuing Legal Education credit by the State Bar of Texas Committee on MCLE in the amount of 1.00 credit hours.
This presentation is approved for one hour of General CLE credit in California from 2025-06-08 to 2026-06-30.

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Speaker

Craig Ball Trial Lawyer & Computer Forensic Examiner

Craig Ball hails from Texas, works in Austin, and happily calls the Big Easy home. A graduate of Rice University and the University of Texas School of Law, Craig is a trial lawyer and certified computer forensic examiner. Licensed in Texas since 1982, Craig is an Adjunct Professor at the University of Texas School of Law and at Tulane Law School, teaching Electronic Evidence and Digital Discovery. Craig is an expert in digital forensics, emerging technologies, visual persuasion, electronic discovery, and trial tactics, limiting his practice to service as a court-appointed Special Master in Electronically-Stored Information. Read More ›

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