Post Process

Everything to do with E-discovery & ESI

Definitions of “Document” and “Communications” included in discovery requests

Posted by rjbiii on October 18, 2007

I’ve just read an opinion highlighted by The Electronic Discovery Blog, where a paper production was found to be insuffient, so the court ordered a production in electronic format. The opinion notes that the discovery request included a definition of the terms “document” and “communications:”

“Communications” means any transmittal of information in any form or format, whether oral, written, or electronic, including, without limitation, all correspondence, inquiries, discussions, conversations, negotiations, agreements, understandings, meetings, telephone conversations and message logs, letters, notes, memoranda, telegrams, faxes, emails, or recordings. It is understood that all categories of documents described above shall include with respect thereto all communications as defined, whether or not expressly stated. The production of electronic communications should be accompanied by a description of the software and technology used to prepare the communications and needed to read them.

The term “document” means all writings of any kind, including the originals and all nonidentical copies, whether different from the originals by reason of any notation made on such copies or otherwise (including without limitation, correspondence, e-mail, memoranda, notes, diaries, statistics,
checks, statements, receipts, returns, summaries, pleadings, affidavits, depositions, pamphlets, books, prospectuses, inter-office and intra-office communications, offer notations of any sort of conversations, telephone calls, meetings or other communications, bulletins, printed matter, computer printouts, information contained in any computer although not yet printed in hard copy, teletypes, telefax, invoices, worksheets, and all drafts, alterations, modifications, changes and amendments of any of the foregoing), graphic or oral records or representations of any kind, (including without
limitations, photographs, charts, graphs, microfiche, microfilm, videotape, recordings, motion pictures) and electronic, mechanical or electrical records or representations of any kind, (including without limitations, tapes, cassettes, discs, recordings).

John B. v. Goetz, 2007 U.S. Dist. LEXIS 75457 (M.D. Tenn. Oct. 10, 2007) (emphasis in the opinion).

We just posted about an article on CNet describing how the definition of the term “document” has been expanded. I do have an issue with defining a document (as is done above) as “information contained in any computer although not yet printed in hard copy.” That seems rather nebulous. A document, I believe, is a coherent unit of information that may consist of a single file (a simple Word or Adobe file) or may consist of multiple files (an html page that includes images and the like separately, or a Word file that links to graphs and spreadsheets).

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