No. 1: Failing to understand what electronically stored information (ESI) your client or the opposing party has.

- You must force your client to explain what ESI it creates and what ESI it stores. All forms of ESI have long been discoverable (Santiago v. Miles, 121 F.R.D. 636, 640 (W.D.N.Y.1988); see, e.g., Smith v. Cafe Asia, 2007 WL 2847579 (D.D.C. Oct. 2, 2007) (plaintiff ordered to preserve and allow inspection of pornographic images stored on his cell phone) and may be so even if the data has been deleted but is recoverable at substantial additional cost. Your client contact is unlikely to know everything about the client’s IT system so you must find out to whom else you must speak. Do not expect your client to always know if its production is complete or if the disks it is producing contain ESI beyond that which was requested. It is your job to find out from your client’s IT personnel. For example, electronic documents have “metadata” – information about when a document was created, edited, sent, and received or how data on a spreadsheet was calculated – embedded in them that does not appear when the document is printed or seen on the screen. You may unknowingly produce metadata that waives a privilege or gives away a trade secret or fail to produce metadata if it was required to be produced leading to sanctions for discovery failures. For example, in Williams v. Sprint/United Management Company, 230 F.R.D. 640 (D.Kan.2005) the defendant was ordered to show cause why it ought not be sanctioned for scrubbing metadata from spreadsheets when previously ordered to produce the electronic spreadsheets in the manner in which they were maintained.

- In document requests, you will have to specifically request that ESI be produced in the form you want; there may be fights over such requests. See, e.g., Nova Measuring Instruments Ltd. V. Nanometrics, Inc., 417 F.Supp.2d 1121 (N.D.Cal. 2006) (production in TIFF format left plaintiff with 36,000 apparently unsearchable documents; court ordered production in native file format with original metadata and Bates numbers). Preliminary depositions of the opposing party’s IT personnel may be necessary prior to merits discovery as noted in In re Carbon Dioxide Industry Antitrust Litigation, 155 F.R.D. 209 (M.D.Fla.1993).