Nail on the head, which is why the changes in 2006/7 to the FRCP addressed
the production of ELECTRONICALLY STORED INFORMATION and it makes no
distinction as to the 'state' of that information.

(in part)

Committee Notes on Rules—2006 Amendment

Subdivision (a). As originally adopted, Rule 34 focused on discovery of
“documents” and “things.” In 1970, Rule 34(a) was amended to include
discovery of data compilations, anticipating that the use of computerized
information would increase. Since then, the growth in electronically stored
information and in the variety of systems for creating and storing such
information has been dramatic. Lawyers and judges interpreted the term
“documents” to include electronically stored information because it was
obviously improper to allow a party to evade discovery obligations on the
basis that the label had not kept pace with changes in information
technology. But it has become increasingly difficult to say that all forms
of electronically stored information, many dynamic in nature, fit within
the traditional concept of a “document.” Electronically stored information
may exist in dynamic databases and other forms far different from fixed
expression on paper. Rule 34(a) is amended to confirm that discovery of
electronically stored information stands on equal footing with discovery of
paper documents. The change clarifies that Rule 34 applies to information
that is fixed in a tangible form and to information that is stored in a
medium from which it can be retrieved and examined. At the same time, a
Rule 34 request for production of “documents” should be understood to
encompass, and the response should include, electronically stored
information unless discovery in the action has clearly distinguished
between electronically stored information and “documents.”

The original language, drafted by legal practitioners and legislators,
addressed "documents" and as the language above states, there was little
anticipation "...that the use of computerized information would
increase..."  (Now watch Doug don his plaid shirt, patterned tie, black
framed glasses, and pocket protector... and watch Leigh roll her eyes =) )

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On Fri, Dec 23, 2011 at 8:43 AM, Doug Smith <[log in to unmask]> wrote:

> This is exactly the point and one of the things Leigh Isaacs and I have
> been addressing in our presentations.  However, I think it misses the point
> that, we can no longer talk about records without the documents or data.
> It does no good to have a records retention/disposition policy without
> addressing the non-records.
> If your policy does not address the data/documents in the records
> lifecycle prior to the records stage, you will not be prepared for
> litigation or even more probably, accurate classification as records.  Your
> information management/retention & disposition policy needs to address the
> entire records lifecycle from creation to disposition.

*Lawrence J. Medina
Danville, CA
RIM Professional since 1972*

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