The adversary demanding the production of electronic information is now authorized to specify the manner in which the information is produced. Fed R. Civ P 34(b). The manner of production demanded by the adversary may not correspond with the format in which the data is maintained. The manner in which the demand is framed may impose a substantial burden on the responding party. When served with such a demand, it is critical first step to ensure that timely and specific objection is made to the manner of production. It is important to remember however that the making of those objections merely preserves them for resolution by the Court. While some Judges are technically adept, we advise clients involved in responding to electronic discovery to develop and document a protocol as to document retention and manner of storage as a proactive measure. Sharing the protocol may result in an agreement by adversary counsel to formulate demands in a manner in which the information is maintained or in the absence of an agreement, to show the Court that the manner of production demanded is out of synch with the manner, presents an unreasonable burden and should not be allowed.
