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REQUESTING THE PRODUCTION
OF ELECTRONICALLY STORED INFORMATION
You should include "Electronically Stored Information (hereinafter, "ESI")" m all
production requests in addition to the old definition of "Documents."
Further, there should be targeted and specific ESI production requests. For example, a
request for "all ESI communications, including, without limitation, email (with attachments), text
messages, instant messages and voice mail, by, to, from, or copied to from between
____ _, 200 _ to 200 _ concerning, or in any way relating to the following
subjects: ." If possible, it should be more focused
than that. If a high volume of ESI is anticipated, you should negotiate a keyword and/or concept
search strategy with opposing counsel. As a requesting party, you will want a right to sampling
and iterative processes. This means you preserve the right to ask for a search of the same ESI
again, but 'vith different search terms. This is typically done as part of the negotiation, not in the
initial request.
The: request should also specify the FORM of production required for the ESI requested.
Usually that will be an electronic form, either in the original native format (be specific where
possible) or some other reasonably usable form. See: Rule 34(b)(2XE). Where specifying
production of email in native format, you should specify production in PST format, not MSG,
with all internal metadata preserved. Speak with technical support on these issues in any request
where a large volume that is anticipated. A TIFF format production with metadata preserved
may some:times be preferable to native production. You could also specify paper format
production ofESI, but in most circumstances you would not want to do that.
You may also want to specify (as shown in the optional language of the ESI definition
. below) that the original, unaltered metadata be included in the production, and, where applicable,
specify the exact metadata fields to be included. The designation of specific metadata requested
is especially important where the form requested is TIFF. The Load File accompanying the TIFF
production will contain the related metadata you specify.
The request may also address duplicative ESI files, where it is common to request, or at
least state, that vertical deduplication of emails is permitted so long as the method and extent of
deduplication is disclosed. In certain circumstances, horizontal deduplication may also be
desired. There is no right to require de-duplication of any kind, but both sides may prefer it.
Finally, note that you will typically not want to include backup tapes, and this is so noted
as optional language only at the bottom of the following suggested definition for federal court.
The recommended definition of ESI should vary depending on whether it is state or
federal court. Also, it should be tailored to the specific state, and where there are local rules, to
the specific court.
You should include the following ESI Definition with your request (along "\vith any otller
Definitions you may usually use), followed by Special Instructions For ESI Production (some ~ f
which may not be.applicable in every case), and then the actual request for production of email,
and other communications .
HERE IS RECOMMENDED LANGUAGE
FOR DEFINITION OF ESI IN FEDERAL COURT:
"The_ term Electronically Stored Information (hereinafter "ESI") shall include all
electronic information permitted under Rule 34, Federal Rules of Civil Procedure, including,
without limitation: word-processing documents; spreadsheets; presentation documents; graphics;
animations; images; email (including attachments which shall be kept with the email); instant
messages; text messages; voice mail; audio, video, and audiovisual recordings; databases and
database subsets; and other user or machine-created computer files or other digital information
which is stored on computer networks, servers, computer systems, desktop computers, laptop
computers, home computers, the Internet, an Intranet, archives, discs, CD's, diskettes, drives, zip
drives, tapes, cartridges, flash drives, and other external storage media, personal digital
assistants, handheld wireless devices, cellular telephones, blackberries, pagers, and voicemail
systems [and back-up or disaster recovery systems
1
]. [All of the ESI requested herein shall be
produced in its original native format with all metadata preserved.2]
SPECIAL INSTRUCTIONS FOR ESI PRODUCTION
1. All of the ESI Documents requested herein shall be produced in their original

native format as they are kept in the ;B!J!lii usual course of business. To the extent reasonably
possible, the native production shall include and preserve relevant metadata. Production in non-
native electronic format may be made if this is reasonably necessary to protect the confidentiality
of a particular computer file, or files, including, without limitation, to allow for partial redaction
or marking of confidential or privileged information. Production in non-native electronic format
in those circumstances should include load files with relevant metadata and applicable coding to
1
This request, in brackets regarding back-up or disaster recovery systems, is unusual but, if used, is usually not
included in the first request for production.
2
This request, the second in brackets regarding native format, although optional, should be used in all
circumstances.
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facilitate the usability of the ESL Advance communications with the undersigned on the ESI
production, including, without limitation, any planned conversion to TIFF for confidentiality
protection purposes, is respectfully requested to coordinate technical issues, insure that the ESI is
produced in a reasonably usable form, and to discuss possible economies of ESI processing that
may facilitate the parties securing a just, speedy, and inexpensive determination ohhis action.
2. The ESI documents requested herein shall be produced on "write-once" CDs or
DVDs, and clearly marked and labeled with the names of the custodians and date of production.
In large volume productions, please contact the undersigned regarding production on hard drives
with read only attributes or other safeguards.
3. All email produced shall include all of the original attachments, unless it is
reasonably necessary to exclude particular attachments for confidentiality or privilege purposes,
in which case the exclusions shall be noted in an accompanying log.
4. All email produced shall be segregated and produced on a custodian by custodian
basis. The production shall be produced in repacked PST files, not in individual MSG files.
5. For any ESI Document withheld on the ground of any privilege, identify the basis
for the privilege claimed, the date, author, recipient and general subject matter of the document.
6. For any ESI Document withheld on the ground of confidentiality, identify the
basis for the confidentiality claim, the date, author, recipient and general subject matter of the
document withheld.
7. If any ESI Document responsive to this Request is no longer in your possession or
control, state:
(a) The date, author, recipient and general subject matter of the document;
(b) When you last possessed, examined, received, or saw the document;
( c) The custodian or person responsible for maintaining the document; and
(d) If destroyed, how, when, where, why, by whom, and at whose instruction
or direction the document was destroyed.
8. This Request for Production of ESI Documents shall be deemed to be continuing
and should promptly be supplemented if any additional ESI documents or information are
discovered or become available after the date of production.
HER!!: IS AN EXAMPLE OF HOW THIS WOULD WORK. You would have the
following definitions of "Documents" and "ESL" The document requests would follow. This is
just an example.:
DEFINITIONS
1. The terms "document" and "documents" shall mean all documents and things
within the scope of Rule [34(b) of the Federal Rules of Civil Procedure OR 1.350 of the
Florida Rufos of Civil Procedure], including, but not limited to, the original and any non-
identical copy (whether different from the original because of the notes made on or attached to
such copy or otherwise), including draft versions of the original, of any written, recorded, or
graphic matter, however produced or reproduced, including, but not limited to, memoranda,
inter-office communications, studies, analyses, reports, results of investigations, contracts,
agreements, work papers, ledgers, books of account, vouchers, bank checks, invoices, receipts,
Electronically Stored Information (as defined below), lists, telegrams, schedules, photographs,
sound recordings, films, and/or any other document or writings of any kind whatsoever. For any
document related to the matters described herein which is not in your possession, but which you
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know to exist, you are requested to identify any such document and indicate to the best of your
ability that document's present or last known location and custodian.
2. The term Electronically Stored Information (hereinafter "ESI") shall include
all electronic information permitted under Rule 34, Federal Rules of Civil Procedure, including,
without limitation:
word-processing documents; spreadsheets; presentation documents;
graphics; animations; images; e-mail (including attachments which shall me kept with the email);
instant messages; text messages; voice mail; audio, video, and audiovisual recordings; databases
and database subsets; and other user, or machine created, computer files or other digital
information which is stored on computer networks, servers, computer systems, desktop
computers, laptop computers, home computers, the Internet, an Intranet, archives, discs, CD's,
diskettes, drives, zip drives, tapes, cartridges, flash drives, and other external storage media,
personal digital assistants, handheld wireless devices, cellular telephones, blackberries, pagers,
and voicemail systems. All of the ESI requested herein shall be produced in its original native
format with all metadata preserved.
SPECIAL INSTRUCTIONS FOR ESI PRODUCTION
1. All of the ESI Documents requested herein shall be produced in their original
native format as they are kept in the f4{i;I usual course of u s i n ~ s s To the extent reasonably
possible, the native production shall include and preserve relevant metadata. Production in non-
native electronic format, including TIFF or other flat file format, may be made with an
accompanying load file containing relevant metadata, if this is reasonably necessary to protect
the confidentiality of a particular computer file, or files, including, without limitation, to allow
for partial redaction or marking of confidential or privileged information. Advance
communications with the undersigned on the ESI production, including, without limitation, any
planned conversion to TIFF for confidentiality protection purposes, is respectfully requested to
coordinate technical issues, insure that the ESI is produced in a reasonably _usable form, and to
discuss possible economies of ESI processing that may facilitate the parties securing a just,
speedy, and inexpensive determination of this action.
2. The ESI documents requested herein shall be produced on "write-once" CDs or
DVDs, and clearly marked and labeled with the names oft.lie custodians and date of production.
3. All email produced shall include all of the original attachments, unless it is
reasonably necessary to exclude particular attachments for confidentiality or privilege purposes,
in which case the exclusions shall be noted in an accompanying log.
4. All email produced shall be segregated and produced on a custodian by custodian
basis. The production shall include the custodian's original folder structure of the emails
produced. For that reason, and to preserve relevant metadata as noted above, all email ESI
documents produced shall be produced in repacked PST files, not in individual MSG files.
5. For any ESI Document withheld on the ground of any privilege, identify the basis
for the privilege claimed, the date, author, recipient and general subject matter of the document.
6. For any ESI Document withheld on the ground of confidentiality, identify the
basis for the confidentiality claim, the date, author, recipient and general subject matter of the
document withheld.
7. If any ESI Document responsive to this Request is no longer in your possession or
control, state:
(a) The date, author, recipient and general subject matter of the document;
(b) When you last possessed, examined, received, or saw the document;
( c) The custodian or person responsible for maintaining the document; and
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( d) If destroyed, how, when, where, why, by whom, and at whose instruction
or direction the document was destroyed.
8. This Request for Production of ESI Documents shall be deemed to be continuing
and should promptly be supplemented if any additional ESI documents or information are
discovered or become available after the date of production.
REQUESTS
1. All ESI communications, including, without limitation, email (with attachments),
text messages, instant messages and voice mail, either created by you, or received by you,
between April 1, 2006, and March 1, 2007, concerning, or in any way relating to the following:
The email attachment(s) should not be separated from the email. They should be produced
together in original native format so that it is clear which attachment belongs to which email.
2. All ESI databases within your control, including, without limitation, any and all
SQL databases, Access databases, Excel files, text files, Word documents, and log files
concerning, or in any way relating to the following: ______________ _
3. All ESI evidencing, concerning, or making reference to any payments, or
exchange of fonds or assets you made between April 1, 2006, and March 1, 2007.
4.. All ESI, including, but not limited to, account statements, evidencing, concerning
or making reforence to any bank, brokerage or other financial institution account maintained by
XYZ Company since April 1, 2006, to the present.

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