eLessons Learned - Full Article

When eDiscovery Exists in Only One Format, Requesting Parties Must Make Do

Some types of electronically stored information (ESI) can be viewed in formats so ubiquitous that instructions are unnecessary and it can be assumed that everyone has the software necessary to access the information. Other forms of ESI, however, can often be more difficult to access. In the scope of eDiscovery, difficulty of access can be

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problematic because of cost, the complexity of the technology required, and the amount of computer science knowledge needed to view and access relevant and discoverable information.

The case analyzed herein, Ravit v. Simon Properties Group, Inc., involves a simple slip and fall scenario. The plaintiff requested a surveillance videotape which was in the position of the defendants. The defendants provided the video data in its native format along with instructions on how to view the video. The instructions explained how to download and install a video codec for windows media player.

A New York trial court held that the provided instructions were sufficient. When a party requests electronic information, and the information is sent in the only format available with instructions on how to read or view that information, a court will require the receiving party to manage on their own and will not require the electronic information to be sent in a different format. If the copy sent is defective, then a second request (in the same format) is perfectly reasonable. However, parties are expected to be able to read and view an electronic source with some instruction so long as the software required to review is common and relatively inexpensive.

Litigants involved with eDiscovery must be prepared to access the ESI requested. A court will assume parties posses a reasonable amount of knowledge, and so law firms engaged in eDiscovery should make it incumbent upon themselves to be able to access common types of ESI.


Marco received a B.A. from Rutgers University (2009) and now attends Seton Hall University School of Law. He is a member of the Seton Hall Legislative Journal and will be published in the Seton Hall Health Law Outlook. Marco will receive his J.D. in 2013. Upon graduating, he will clerk for Judge Joseph Rea of the Superior Court of New Jersey, Law Division, for Middlesex County.


Comments (1):

  1. The headline should be make do, not due. Unless of course, there was an intended pun that I missed.

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