It is Not Impossible to Produce Native File Gmail

A Court recently held that it was not “impossible” to produce Gmail in native file format. The more accurate holding might have been “in a reasonably useable form.” Keaton v. Hannum, 2013 U.S. Dist. LEXIS 60519, at *4-5 (S.D. Ind. Apr. 29, 2013).

Here is the relevant section from the case:

Zook has argued that she cannot produce her Gmail files in a .pst format because no native format exists for Gmail (i.e., Google) email accounts. The Court finds this to be incorrect based on Exhibit 2 provided by Zook in her Opposition Brief. [Dkt. 92 at Ex. 2 (Ball, Craig: Latin: To Bring With You Under Penalty of Punishment , EDD Update (Apr. 17, 2010)).] Exhibit 2 explains that, although Gmail does not support a “Save As” feature to generate a single message format or PST, the messages can be downloaded to Outlook and saved as .eml or .msg files, or, as the author did, generate a PDF Portfolio — “a collection of multiple files in varying format that are housed in a single, viewable and searchable container.” [Id .] In fact, Zook has already compiled most of her archived Gmail emails between her and Keaton in a .pst format when Victim.pst was created. It is not impossible to create a “native” file for Gmail emails.

Keaton, at *4-5.

Bow Tie Thoughts

I contacted my friend Charlie Kaupp at Digital Strata for his thoughts on producing gmail in native file format. Here is what he said:

- Downloading to Outlook won’t result in a true native collection, but rather a copy of the native, so should be accounted for as a copy.

- Downloading to Outlook requires the user’s login and password, so is not a viable option for uncooperative custodians or for long lists of collections.

- There are other tools that will allow you to create a direct IMAP connection and download that directly into other formats with full logging, which may be more defensible than the Outlook option.

- PDF portfolios are not native copies and will result in lots of lost metadata. Converted PST or MSG is the best for preserving metadata.

Webmail creates many challenges on how to collect the relevant ESI. Consulting with an expert is always a good plan to determine a course of action that is proportional to the case. Many things lawyers believe to be “impossible” are well within the means of a data collection expert.

 

Still No Rummaging Through Social Media in Discovery

Courts will not ReTweet or “Like” discovery requests for social media that are simply fishing expeditions.

In Salvato v. Miley, the Plaintiff requested the following discovery:

Interrogatory 12

Please identify whether you had any social media accounts and/or profiles including, but not limited to, Facebook, Twitter, MySpace, you have had at any time from July 5, 2012-February 1, 2013. For each account, please provide the name and/or username associated with the profile and/or social media account, the type of social media account (e.g. — Facebook, Twitter, etc.), the email address associated with the social media account, the dates you’ve maintained the account, and/or whether the account is still active.

Request No. 3

Please produce a copy of any and all electronic communication either sent or received by you through social networking sites, including, but not limited to, Facebook, Twitter, and/or MySpace, between July 5, 2012 — February 1, 2013, that relate in any way to the incident that is described in the Second Amended Complaint. Please exclude any electronic communications that were sent and/or received exclusively between yourself and your attorney.

Salvato v. Miley, 2013 U.S. Dist. LEXIS 81784, 3-4 (D. Fla. 2013)

The Court held the discovery requests were not reasonably calculated to lead to the discovery of admissible evidence. Salvato, at *6-7. The Court explained:

Here, Plaintiff simply contends that the requests are relevant because, “Plaintiff is seeking information about statements that Defendant Brown made about the incident at issue in this case, which could include admissions against interest, and could certainly lead to the discovery of admissible evidence.” (Doc. 27 at 7). The mere hope that Brown’s private text-messages, e-mails, and electronic communication might include an admission against interest, without more, is not a sufficient reason to require Brown to provide Plaintiff open access to his private communications with third parties. Indeed, Plaintiff has “essentially sought permission to conduct ‘a fishing expedition’ . . . on the mere hope of finding relevant evidence.” Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387, 388 (E.D.Mich. Jan. 18, 2012)(quoting McCann v. Harleysville Ins. Co. of New York, 78 A.D.3d 1524, 1524, 910 N.Y.S.2d 614 (N.Y. App. Div. 2010)). A party “does not have a generalized right to rummage at will through information that Plaintiff has limited from public view.” Id.

Salvato, at *6-7.

Bow Tie Thoughts

Requests for social media, text messages and other ESI must be narrowly tailored and not a rummaging expedition at a garage sale.

“Hoping” a text message or social media wall post exist does not make them a reality. With that said, it is a challenge to draft a more specific discovery request without knowing who the Defendant communicated with regarding the incident in the lawsuit.

Discussing possible custodians, whether they communicated by email, text, or social media, is an excellent meet and confer topic. Another good pointer is to narrow the time period, which the request at issue in this case did do.

If a requesting party is after specific social media communications, requesting messages or postings from specific dates, stated topics and between named individuals are factors to make a request narrowly tailored. For example, a party in an auto accident may take a photo of the car damage on Instagram (which would be odd, but possible). Instead of requesting all social media photos, requesting any photos taken the day of the incident would certainly be one way to acquire the discovery.

Plain Spoken Form of Production

My grandfather grew up a plain spoken farmer in Iowa. He had a bow tie wearing attorney uncle who also knew how to sum up an issue.

It is very nice to see a clearly stated order on the form of production from the Northern District of Iowa, Eastern Division that continues the tradition of telling it like it is.

Magistrate Judge Ross Walters concisely summarized the form of production:

Federal Rule of Civil Procedure 34(b)(2)(E) requires that a party must produce electronically stored information (“ESI”) “in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms . . . .” Similarly the Advisory Committee Note to the 2006 rules amendment (“Advisory Committee Note”) explains that if the form of production has not been specified by agreement or court order “the responding party must produce electronically stored information either in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably useable.”

Readlyn Tel. Co. v. Qwest Communs. Corp., 2013 U.S. Dist. LEXIS 45168, 2-3 (N.D. Iowa Mar. 29, 2013).

The producing party stated it had produced the ESI in a reasonably useable form. The Court saw no reason not to believe them and held that the producing party did not have to re-produce ESI already produced as native files or in a read-only but searchable format. Readlyn, at *3.

There was a big “however”: If there was any discovery that had to be produced subject to the motion to compel, the Court required the ESI to be produced in native format or read-only but searchable format.” Id. The Court stated:

Specifically, if Readlyn ordinarily maintains additional information subject to production by this ruling “in a way that makes it searchable by electronic means,” care shall be taken that the form of production will not “remove[] or significantly degrade[]” the searchable feature. Advisory Committee Note.

Readlyn, at *3.

Bow Tie Thoughts

I am not the first bow tie wearing lawyer in my family.

This is the first court order I have seen that used the phrase “read-only but searchable format.” There are many opinions stating “searchable format,” but this is the only one I have seen with that exact language. I believe this is a more accurate statement of the law regarding productions, because the use of “static images” or “TIFF’s” or “PDF’s” can result in “read-only” productions that are not searchable.

Judge Walters’ use of the phrase “read-only but searchable format” ensured compliance with the language of the Federal Rules of Civil Procedure and Advisory Notes that prohibits degrading searchable features of electronically stored information in discovery. I hope others follow Judge Ross Walters’ lead in other discovery orders on the form of production.

What options are there for producing ”read-only but searchable format”? The traditional options are 1) TIFF with extracted text/metadata and 2) Searchable PDF with extracted text/metadata. Parties not using a review platform can conduct basic word searches in a searchable PDF or the text file accompanying a TIFF production. Parties using a review platform can get the benefit of effectively having “free document review” because all the objective information is readily searchable by name, date and other basic information from the face of the document.

You Might Want a Glass of Wine: No Costs for Native File Processing

It is sad when good arguments fail. Taxation of cost cases frequently deny processing costs of native files, unless there is conversion to a static image. Conversion of native files to static images can significantly increase processing costs, opposed to keeping native files in their original format.

It is fitting that a taxation of cost case involved wine, because an attorney will want a glass of wine if unsuccessful on a cost motion.

In Country Vintner of N.C. v. E. & J. Gallo Winery, the Court summarized Gallo’s arguments as follows:

Gallo argues that its ESI-processing charges are taxable as fees for “making copies” under § 1920(4) because ESI has “unique features”: ESI is “more easily and thoroughly changeable than paper documents,” it contains metadata, and it often has searchable text. Opening Br. 23, 26-27. Gallo contends that converting native files to PDF and TIFF formats “produce[ d] static, two-dimensional images that, by themselves, [we]re incomplete copies of dynamic, multi-dimensional ESI”; other “processing . . . was necessary to copy all integral features of the ESI.” Id. at 28 (emphasis in original). Gallo argues that it had to remove ESI from container files, extract and index text to make it searchable, copy metadata, and load the data onto a “review platform” to allow “the native files and their associated metadata [to] be viewed and their text [to] be searched as if the native files were being opened in the software applications that created them.” Id. at 28-29. Gallo concedes that this process was far more involved than that necessary to copy paper documents but argues that just as copying a table or dress requires a different approach than copying a paper document, copying ESI also requires a different approach. Id. at 26.

Country Vintner of N.C. v. E. & J. Gallo Winery, 2013 U.S. App. LEXIS 8629, 25-27 (4th Cir. 2013).

Gallo made a very good argument, like a bold cabernet, with a hint of carmel and oak. Unfortunately, the Court poured it down the drain like it was vinegar.

Country Vinter claimed Gallo distorted “the plain meaning of the statute” and “misconstrue[d] the act of processing.” Moreover, Country Vinter argued processing was “not required in order to produce copies to Country Vintner, only to assist Gallo with its review.” Country Vintner of N.C., at *27.

Country Vintner disputed the argument that Gallo “had no choice but to process the ESI . . . in order to comply with its discovery obligations,” because “Country Vintner never demanded that Gallo produce processed ESI replete with metadata and searchable text.” Id.

The Court took a wine tasting tour of Race Tires America, Inc. v. Hoosier Racing Tire Corp and when eDiscovery processing could be recoverable.

The Court summarized Race Tires as follows:

In Race Tires America, Inc., the Third Circuit held that, “of the numerous services [that] [electronic discovery] vendors [had] performed” in that case, “only the scanning of hard copy documents, the conversion of native files to TIFF, and the transfer of VHS tapes to DVD involved ‘copying’” within the meaning of § 1920(4). Race Tires Am. Inc., 674 F.3d at 171. The court reasoned that [s]ection 1920(4) does not state that all steps that lead up to the production of copies of materials are taxable. It does not authorize taxation merely because today’s technology requires technical expertise not ordinarily possessed by the typical legal professional. It does not say that activities that encourage cost savings may be taxed. Section 1920(4) authorizes awarding only the cost of making copies. Id. at 169 (footnote omitted). The court recognized that “extensive ‘processing’” may be “essential to make a comprehensive and intelligible production” of ESI. Id. Hard drives may need to be imaged, the imaged drives may need to be searched to identify relevant files, relevant files may need to be screened for privileged or otherwise protected information, file formats may need to be converted, and ultimately files may need to be transferred to different media for production. Id. Nonetheless, the court reasoned, “that does not mean that the services leading up to the actual production constitute ‘making copies.’” Id. The process employed in the pre-digital era to produce documents in complex litigation similarly involved a number of steps essential to the ultimate act of production. First, the paper files had to be located. The files then had to be collected, or a document reviewer  had to travel to where the files were located. The documents, or duplicates of the documents, were then reviewed to determine those that may have been relevant. The files designated as potentially relevant had to be screened for privileged or otherwise protected material. Ultimately, a large volume of documents would have been processed to produce a smaller set of relevant documents. None of the steps that preceded the actual act of making copies in the pre-digital era would have been considered taxable. And that is because Congress did not authorize taxation of charges necessarily incurred to discharge discovery obligations. It allowed only for the taxation of the costs of making copies. Id. The Third Circuit further reasoned that the Supreme Court has “accorded a narrow reading to the cost statute in other contexts,” and “[n]either the degree of expertise necessary to perform the work nor the identity of the party performing the work of ‘making copies’ is a factor that can be gleaned from § 1920(4).” Id. at 169, 171. “Nor may the courts invoke equitable concerns . . . to justify an award of costs for services that Congress has not made taxable.” Id. at 170.

Country Vintner of N.C., at *27-29.

Despite rejecting Gallo’s processing cost argument, the Court stated the following in footnote 19:

We are mindful that converting ESI from editable to non-editable formats, or copying ESI in its native format, often encompasses the copying of metadata. If, for instance, a case directly or indirectly required production of ESI-unique information such as metadata, we assume, without deciding, that taxable costs would include any technical processes necessary to copy ESI in a format that includes such information. This case does not fall within those limited circumstances.

Country Vintner of N.C., at *30, fn 19.

Based on the above, the Court upheld the District Court’s holding that the only recoverable costs for “making copies” under § 1920(4) were the conversion of native files to TIFF and PDF formats, and the transfer of files onto CDs. Country Vintner of N.C., at *32.

Bow Tie Thoughts

I think the legal definition of “making copies” only applying to converting native files to static images is wrong legally and technically. I believe one of these cases can be successful if the moving party understands the issue and has an expert who can explain how data is “copied” in eDiscovery processing to a judge knowledgeable about eDiscovery workflow.

A copy of ESI is made by the very act of data collection and processing the data for a review platform. After conducting review, data is often processed again from the producing party to the requesting party, due to privilege or the simple fact the parties have different review platforms. Moreover, producing “metadata” or searchable text is not “extensive processing”; it is normal processing.

To put it bluntly, a request for production of electronically stored information not to include metadata or searchable text is like asking for a paper production without ink on the pages.

Let’s consider the following:

The taxation of cost statute states:

Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;

28 USCS § 1920(4).

Federal Rule of Civil Procedure Rule 34(a)(1)(A) permits a party to request electronically stored information that is “stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.” The requesting party can state its form of production. In the event no form is stated, the ESI must be produced in the form it is “ordinarily maintained or in a reasonably usable form or forms.” Federal Rule of Civil Procedure Rule 34(b)(2)(E). Electronically stored information is ordinarily maintained in its native applications with metadata.

The defensible “collection” of ESI produces a copy of the data. This data is then “processed” to be loaded into a review platform for discovery review.

Many Court opinions recognize the need for substantive or embedded metadata. Moreover, many opinions recognize that a production as non-searchable static images is not in a reasonably useable form (see Jannx Med. Sys. v. Methodist Hosps., Inc., 2010 U.S. Dist. LEXIS 122574 (N.D. Ind. Nov. 17, 2010)). Additionally, metadata is needed to leverage the search technology that can organize communications based on time and other analytical tools vital to understand electronically stored information.

The fact that the Federal Rules of Civil Procedure create a default for ESI to be produced as it is ordinarily maintained should not be a prohibition on later recovering processing costs. Each step in the process of collecting data and processing it for a review platform and ultimately production is a technological necessity to make a copy. Simply put, requiring native files to be be converted into static images for taxation of costs drives up the production costs. Worse yet, producing static images dramatically reduces the data’s utility in any review platform. This is contrary to Federal Rule of Civil Procedure Rule 1′s mandate to control costs, creating a cost incentive for inefficiency.

Triggering the Duty to Preserve

Plaintiffs requested email sent to or from the Defendants on November 4, 2011 in their April 10, 2012 discovery requests. The Plaintiffs had filed the lawsuit and an emergency preliminary injunction on November 7, 2011, which was attended by Defense counsel. The Defendants claimed producing the emails was impossible, because the Defendant had a 90 day retention policy and the Plaintiff did not serve the discovery requests until April 10, 2012, more than 150 days after the date in question. Stiriling v. St. Louis County Police Dep’t, 2013 U.S. Dist. LEXIS 71435, 1-5 (D. Mo. 2013).

The Court rejected the Defendants’ “impossibility” argument.

The Court explained that the “obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation – most commonly when suit has already been filed, providing the party responsible for the destruction with express notice, but also on occasion in other circumstances, as for example when a party should have known that the evidence may be relevant to future litigation.” Stiriling, at *3, citing  Kronisch v. United States, 150 F.3d 112, 126 (2nd Cir. 1998) (emphasis added), overruled on other grounds by Rotella v. Wood, 528 U.S. 549 (2000).

The Court held that the duty to preserve evidence began on November 7, 2011, because of the filing of the lawsuit and emergency preliminary injunction hearing, putting the Defendants on notice of the lawsuit and the relevant subject matter. Stiriling, at *3-4.

The Court further held:

As such, Defendants are directed immediately to determine all sources, including back-up computer files, where such emails may still exist. Defendants shall thereafter file a notice with the Court advising of any and all sources from which said emails may be retrieved, and shall show cause why they should not be required to retrieve and produce said documents.

///

IT IS FURTHER ORDERED that Defendants shall immediately make a thorough and complete determination of all sources, including hard copy files and electronic files, and including any and all back-up files, and make a good faith effort to uncover all responsive information in their possession, custody or control.

IT IS FURTHER ORDERED that on or before May 31, 2013, Defendants shall file a notice with the Court advising of any and all sources from which the requested emails may be retrieved, and shall show cause why they should not be compelled to retrieve and produce said emails from those sources.

Stiriling, at *4-5.

Bow Tie Thoughts

Determining the triggering date of the duty to preserve can be fact intensive. Most situations do not have a dispute date followed by the filing of a lawsuit three days later, complete with an emergency hearing for a preliminary injunction. These facts have bright lines to show a triggering date for issuing a litigation hold.

There are several ways to comply with the duty to preserve (Note, freezing the custodian is not one of them).

If dealing with simply one laptop, having a mirror image of the hard drive might only cost $500 (which compared to motion practice is cheap).

Alternatively, if the relevant content is very specific (i.e., there was an emergency hearing on it), a party might have an expert perform a targeted collection on a laptop, to avoid collecting non-relevant files. Which technology to use will turn heavily on the facts of the lawsuit.

Attorneys would be remised to only think in terms of laptops. Relevant data might be on smartphones or tablet PC’s, so asking their clients what computer devices they use is highly recommended.

Denial of “Twitter Appeal”

The New York Court of Appeals denied Nonparty Twitter, Inc.’s appeal in People v Harris as “academic” and moot, because the Tweets in question had been produced pursuant to the State’s subpoenas. New York v. Harris, 2013 N.Y. Misc. LEXIS 2039 (N.Y. Misc. 2013).

The case involved the prosecution of an Occupy Wall Street protestor and the DA’s subpoena to obtain the Defendant’s Tweets.

The Tweets were relevant to an anticipated Defense argument that the police forced the protestors onto the non-pedestrian part of the Brooklyn Bridge, instead showing it was planned by the protestors. People v Harris, 36 Misc. 3d 868, 876 (N.Y. City Crim. Ct. 2012).

Twitter actually changed their Terms of Service after the first ruling in the case over whether the Defendant had standing to challenge the subpoena, based on who “owned” the user’s Tweets. People v Harris, at *872.

Judge Matthew Sciarrino’s order has wonderful statements on modern litigation involving social media. Here are selected of highlights from his June 30, 2012 order:

If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy. There is no proprietary interest in your tweets, which you have now gifted to the world. This is not the same as a private email, a private direct message, a private chat, or any of the other readily available ways to have a private conversation via the internet that now exist.  Those private dialogues would require a warrant based on probable cause in order to access the relevant information. 

People v Harris, 36 Misc. 3d 868, 874 (N.Y. City Crim. Ct. 2012).

In dealing with social media issues, judges are asked to make decisions based on statutes that can never keep up with technology. In some cases, those same judges have no understanding of the technology themselves (Stephanie Rabiner, Esq., Technologist, Do Judges Really Understand Social Media? http://blogs.findlaw.com/technologist/2012/05/do-judges-really-understand-social-media.html [May 9, 2012]). Judges must then do what they have always done – balance the arguments on the scales of justice. They must weigh the interests of society against the  inalienable rights of the individual who gave away some rights when entering into the social contract that created our government and the laws that we have agreed to follow. Therefore, while the law regarding social media is clearly still developing, it can neither be said that this court does not understand or appreciate the place that social media has in our society nor that it does not appreciate the importance of this ruling and future rulings of courts that may agree or disagree with this decision. In recent years, social media has become one of the most prominent methods of exercising free speech, particularly in countries that do not have very many freedoms at all.

People v Harris, at *877-878.

As the laws, rules and societal norms evolve and change with each new advance in technology, so too will the decisions of our courts. While the U.S. Constitution clearly did not take into consideration any tweets by our founding fathers, it is probably safe to assume that Samuel Adams, Benjamin Franklin, Alexander Hamilton and Thomas Jefferson would have loved to tweet their opinions as much as they loved to write for the newspapers of their day (sometimes under anonymous pseudonyms similar to today’s twitter user names). Those men, and countless soldiers in service to this nation, have risked their lives for our right to tweet or to post an article on Facebook; but that is not the same as arguing that those public tweets are protected. The Constitution gives you the right to post, but as numerous people have learned, there are still consequences for your public posts. What you give to the public belongs to the public. What you keep to yourself belongs only to you.

People v Harris, 878.

Bow Tie Thoughts

Just as a person’s eyes are a window to their soul, social media is a window into statements of future intent, state of mind and party admissions.

The evidence issues in social media can become complex, from “checking in” at location on a social media app being a present sense impression to layered hearsay with a video of a witness recorded on a smartphone at an incident, then shared by another declarant on their social media profile. Each declarant made an out-of-court statement that if offered in court would have to meet an exception to the hearsay rule (or somehow be non-hearsay).

The battle in most civil and criminal cases is not that social media is relevant, but what social media is relevant. A party cannot simply request a person’s entire social media profile. The entire profile is simply not likely to be relevant. It also smacks of an invasive fishing expedition. Moreover, who actually wants to read every status message from a person over a period of years?

The issue for many litigants is requesting specific postings over a set period of time, or a defined topic, or communications with others made over a posting. In effect, the requests must be narrowly tailored and relevant.

Meet & Confer at 10 Paces

There are attorneys who believe the most effective Rule 26(f) meet and confer is simply meeting at dawn with dueling pistols.

The parties in Procongps, Inc. v. Skypatrol, LLC, fought over proclaimed inadequate productions, failures to adequately meet and confer and the defensibility of their productions. Procongps, Inc. v. Skypatrol, LLC, 2013 U.S. Dist. LEXIS 47133, 9-12 (N.D. Cal. Apr. 1, 2013).

The parties Spireon and Skypatrol had many dueling “they did/they did that first” claims before the Court.

Spireon took issue with a discovery production of “410,000 pages of documents” that contained duplicated information. Procongps, Inc., at *8.

According to Spireon, Skypatrol proposed discussing limiting the scope of ESI in the case. According to Spireon, they were willing to “discuss a search of a limited number of custodians using identified terms only after Skypatrol produced documents that could be identified through traditional methods of conferring with Skypatrol’s employees and agents to identify and produce responsive documents.” Procongps, Inc., at *7.

The parties exchanged discussions about discussing search terms, provided that Skypatrol first met is obligation to produce responsive discovery. Procongps, Inc., at *7-8. Skypatrol’s production followed after these exchanges. Spireon then sought an order from the Court for Skypatrol to identify its production by category pursuant to Federal Rule of Civil Procedure 34(b)(2)(E)(i). Procongps, Inc., at *8.

Skypatrol claimed that they had requested to meet and confer over search terms for months. According to Skypatrol, Spireon refused to meet to discuss discovery productions and exchange search terms. Procongps, Inc., at *8.

Skypatrol argued, “Spireon insisted that Skypatrol conduct its own searches and produce documents from over 200 GB of data.” Procongps, Inc., at *8.

Skypatrol claimed that Spireon could not both refuse to cooperate over limiting the scope of discovery through cooperation, then claim Skypatrol produced “too many” documents. Procongps, Inc., at *8-9.

Furthermore, Skypatrol explained that they did run a de-duplication process over its production; the “duplicative” files were email attachments to messages they included for a complete production. Procongps, Inc., at *9-10.

Skypatrol also argued that Spireon’s production was not forensically sound (defensible), because 1) Spireon could not identify any custodians from whom ESI has been collected; 2) Any search terms used to identify responsive ESI other than “Skypatrol;” and 3) The volume of ESI that had been collected or produced by another in the litigation. Procongps, Inc., at *10-11.

After the parties finished taking their respective shots at the other, the Court stated the following:

Based upon the record before the Court, it appears that the parties have not engaged in a meaningful meet and confer process with regard to ESI production. It is the Court’s view that the current document issues could have been avoided if the parties had cooperated with each other. The relief that the parties seek is essentially an order directing the other side to comply with their discovery obligations, and the Court believes such an order would not actually remedy any problems because both parties assert that they have and are fully complying with their discovery obligations. The Court finds that the most efficient solution is for counsel who are responsible for ESI production to engage in an in-person meet and confer regarding all outstanding ESI production issues in an effort to resolve those matters. If the meet and confer is unsuccessful, the Court will refer any disputes regarding ESI production to a Magistrate Judge for resolution.

Procongps, Inc., at *11-12.

Bow Tie Thoughts 

The Dreyfus Protocol should never be included in a meet and confer.

eDiscovery requires attorneys to not simply talk about cooperating, but to actually cooperate. Determining search methodologies, the scope of discovery and production formats do not require the same zeal as cross-examining an adverse witness. It is not supposed to be a game of “gotcha,” but determining the technical framework to get to the merits of the case. This requires attorneys to be tactical and have a strategic vision for how they will handle ESI in their cases. Moreover, parties must engage in more than pillow talk to actually reach agreement on eDiscovery protocols.

The adult supervision in eDiscovery often comes from eDiscovery attorneys in law firms and litigation support professionals. How data is collected, the scope of ESI in the lawsuit, data reduction strategies and review methodologies are vital to litigating a case pursuant to Federal Rule of Civil Procedure Rule 1. Fundamentally, these are the professionals who advise attorneys to not request “any and all” ESI, but “all unique ESI” to limit duplicate data in ESI productions. The value of these professionals cannot be overstated in helping litigators be cost efficient and effective.

Attorneys who want to learn effective eDiscovery strategy should read Michael Arkfeld’s Best Practices Guide for ESI Pretrial Discovery: Strategy & Tactics. It is one of the best books on the subject. In full disclosure, Michael is a good friend and I have helped on many webinars. The book offers a great overview of issues, checklists and discovery strategies every litigator should before a meet & confer.