My mother used to tell me that if you don't ask for what you want, you'll never get it. John Facciola, a magistrate judge with the U.S. District Court for the District of Columbia, apparently agrees with her.

While it might make my mother happy to hear that, it's not good news for counsel practicing in federal court who have yet to fully grasp the technical complexities of the amended Federal Rules of Civil procedure relating to electronic discovery.

In the recently released opinion D'Onofrio v. SFX Sports Group Inc. (2008 WL 189842, DDC), Facciola ruled against a plaintiff's motion to compel production of a document not because it wasn't responsive - it appears to be highly relevant and responsive - or because the document was privileged; the defendant's request for a protective order for the document was disposed of earlier in the matter. In this case, the plaintiff's motion to compel was denied because her counsel simply failed to make the appropriate request for production in the desired form - to wit, native file format with preserved metadata attached.

So where did the plaintiff go wrong, and what could this mean to her case?

Roots of the dispute

Plaintiff Audrey D'Onofrio filed suit against her former employer, SFX Sports Group Inc., claiming, inter alia, gender discrimination and wrongful termination in accordance with the District of Columbia Human Rights Act, the Equal Pay Act, and the District of Columbia Family Medical Leave Act. The parties have been in ongoing, apparently quite contentious discovery disputes since September 2006.

In response to the plaintiff's discovery motions, SFX produced a document referred to as "The Business Plan" that was not in its native electronic format. The plaintiff's objection to SFX's refusal to turn over the same document, but in its original form with metadata (information about how, when, and by whom the file was generated and modified) attached, gave rise to the issue at hand.

Why would the plaintiff and defendant each spend months of motion practice, and we can only imagine how many billable hours, fighting over a request for a single electronic file and the associated metadata?

It could be simply a display of zealous representation or a personal grudge match. Or just maybe it's that the original electronic file and associated metadata tell a story that the plaintiff's forensic expert could unravel that might be devastating to the defendant's case. While we don't know the answer at this time, what we do know is that, as for now, this plaintiff will not be receiving the electronic file in question.

In rejecting D'Onofrio's demand for a motion to compel the production of this potentially critical piece of evidence, Facciola succinctly held that "A motion to compel is appropriate only where an appropriate request is made of the responding party" (D'Onofrio, 2008 WL 189842, at 4).

The legal discovery process has changed. We now live in the digital information age, where the proverbial smoking gun can be found in the form of a series of zeros and ones strung together on a hard-drive platter. An attorney who still thinks of discovery as simply the exchange of documents is in potentially serious trouble.

In this case, the plaintiff's initial discovery request, which resulted in the production of the business plan in one form (presumably hard copy), did not constitute "an appropriate request" to receive the same document in the desired form - a native electronic file with metadata attached. As a result of this error, the plaintiff may never have the means to uncover a potential smoking gun, and the defendant may dodge a bullet with its name on it.

While the first impulse of members of the defense bar might be to crack a smile, this could just as easily have been evidence in the plaintiff's possession not received by the defendant. So, in the spirit of putting down the stones, let's take a look at why this plaintiff failed to make an "appropriate request" and how you can avoid finding yourself in the same situation.

Be careful what you ask for

It would be difficult to be a litigator and have not been somehow exposed to the amendments to the Federal Rules of Civil Procedure (FRCP) enacted Dec. 1, 2006, related to electronic discovery.

For the issue at hand, we need to first look to amended FRCP Rule 26(f), the meet-and-confer provision, in which parties are instructed to "discuss any issues relating to preserving discoverable information, and to develop a proposed discovery plan that indicates the parties' views and proposals concerning ... any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced" (Fed. R. Civ. P. 26(f); emphasis added).

If D'Onofrio's counsel had, during the meet-and-confer session, requested that discovery of electronically stored information (ESI) be produced in the desired form of native electronic files with metadata, then she would have the disputed "Business Plan" in the desired form, assuming, for argument's sake, that the defendant had properly preserved and collected the native file to prevent spoliation.

This is not to say that in every case, each party should request production of ESI in native electronic files with metadata. There are potentially significant costs involved with e-discovery, particularly with regard to processing and reviewing data for production. Moreover, determining the form or forms of production requires substantial preliminary investigation by counsel to understand what their client has available.

Before you can agree on the form or forms of production, taking note of the disjunctive plural, you need to gather lots of information from your client's information-technology staff as well as your litigation-support staff or outside vendors.

Questions you'll need to consider include:

• How does your client store its ESI?

• What types of systems and software does your client use?

• How do you want to produce your client's ESI, including relevant data from complex systems (such as Oracle or SQL databases), or unusual software (such as CAD drawings)?

• How do you want to receive your opponent's files, including e-mails, loose files and data from complex systems or unusual software?

• What type of review will you be performing? Will you want TIFFs (tagged image file formats) and Concordance or Summation load files, native files with preserved metadata attached, or paper?

• Do you want to have forensic examiners review original materials?

Corporate IT systems are complex, and the volume and types of data are expanding daily. In time, more and more lawyers will become e-discovery specialists. For now, how can you avoid the same fate as plaintiff's counsel in D'Onofrio v. SFX Sports Group and know what to ask for in your next Rule 26(f) meet-and-confer?

Attorneys with the requisite experience and knowledge (directly or through someone on staff) should be able to get up to speed fairly quickly. For the average nontechie lawyer without substantial experience with e-discovery, the answer might be to hire an expert.

No one goes to law school to become an IT geek, but some IT geeks go to law school. If you're not in that category, you should strongly consider finding someone who is. Several e-discovery vendors offer consulting services to assist attorneys in reviewing their client's systems, assessing technical issues, and helping to prepare for and conduct a meet-and-confer session. Such assistance may protect you and protect your client from sharing D'Onofrio's apparent fate.

Eric Mandel is general manager of the Rochester office for D4 LLC, a digital forensics and collection company. Mandel, who holds a law degree, can be reached at emandel@d4discovery.com.