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Obtaining electronically stored information in electronically stored format

A common idea among litigators is that an excellent way to hide damaging information is to produce it with a whole bunch of innocuous information. There’s even an informal term for it: data dumping. Producing thousands of pages of financial or cell phone records in a paper format requires the requesting party to laboriously search through these records in an attempt to find helpful information.

Recognizing this, the South Carolina Supreme Court, in 2011, modified various rules of civil procedure as it regards “electronically stored information.” It specifically modified Rule 34, SCRCP, the rule regarding requests for production, to allow requests to “specify the form or forms in which electronically stored information is to be produced.” Rule 34(b), SCRCP. However, if the request is silent on how such electronically stored information is to be produced “[u]nless the parties otherwise agree, or the court otherwise orders… a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable.” Rule 34(b)(1).

Most financial and cell phone records can now be downloaded online and saved in a PDF format. Unlike paper copies scanned to PDF files, such “electronically stored information” is text-searchable. Rather than having to pour through hundreds, even thousands, of pages of documents, searching for the few items of interest, an attorney can search for specific items by term within seconds. Often a party may only be interested in certain financial transactions or phone calls/text messages to specific numbers. Having documents produced as “electronically stored information” enables quick searches for the desired information. Receiving “electronically stored information” produced as paper documents (or PDF scans of paper documents) requires parties and their attorneys to thoroughly search each individual document. The hope of producing parties who produce such paper copies is that the client and attorney obtaining these documents will either not diligently search them or will miss damaging items within their search.

A requests to produce that specifies “electronically stored information” be produced in that format requires the producing party to provide those documents in that format. A request to produce that is silent on the issue allows for a hard copy dump. Attorneys should insure their requests for production specify how such documents are to be produced (and I can think of no reason one wouldn’t want such records to be produced as electronically stored information).

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  • Very informative information, thanks for the share!

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