Printing ESI & Scanning It Is Not OK

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An article by Joshua Gilliland, Esq. posted on the Bow Tie Law blog.

The article discusses a specific case where one of the parties objected to the format of production.

The article states, "In Indep. Mktg. Group v. Keen, the Defendant-Requesting Party requested the corporate Plaintiff conduct targeted searches with specific key words on specific custodians on the Plaintiff’s server. Indep. Mktg. Group v. Keen, 2012 U.S. Dist. LEXIS 7702 (M.D. Fla. Jan. 24, 2012)."

The article looks at the plaintiff's production method, and discusses a motion to compel the production of ESI by the defendant.  The article states, "The Court observed the Plaintiffs production methodology included identifying the responsive ESI on their computer, printing it as paper and then scanning the paper as a non-searchable PDF. Indep. Mktg. Group.,

The Court explained that the Plaintiff did not produce the ESI as it was ordinarily maintained by printing the ESI as paper and then scanning the documents as non-searchable PDF’s. Indep. Mktg. Group.  Additionally, the ESI was not produced in a reasonably useable form, because it was non-searchable.

The Court rejected Plaintiff’s undue burden and cost arguments, noting that there is a presumption that the producing party incurs its own production costs. Moreover, the Plaintiff never argued the data was not reasonably accessible, which would have been undercut by the fact they could search their computer for responsive ESI that was printed."  Footnotes are provided in the article.