Scanning Paper Makes the Production ESI And Not a Document

Anderson Living Trust v. WPX Energy Prod., LLC, 2014 U.S. Dist. LEXIS 31025, 3-4 (D.N.M. Mar. 6, 2014), is a detailed review of production requirements under Federal Rule of Civil Procedure Rule 34(b)(2)(E). The crux of the case centered on whether scanning paper documents to PDF’s made the discovery “electronically stored information.” Moreover, if the paper discovery was now ESI under the Rules, did the producing party have to organize the production under the 34(b)(2)(E)(i)?

The Court found that the parties agreement to produce paper as PDF’s made the discovery ESI. As such, the organization requirement under 34(b)(2)(E)(i) did NOT apply to the former paper production. Rule 34(b)(2)(E)(ii) controlled instead, which requires ESI productions be in the form it is ordinarily maintained or in a reasonable useable form.


This case highlights the train wreck that can happen from fighting over the form of production. Moreover, the fact the Court found the paper was transmuted to ESI by scanning might be technically correct, but is problematic. Moreover, the case even included a discussion of whether reviewing ESI in a review platform for privileged eliminated the ability to produce ESI as in “the usual course of business,” because it had been in a review platform.

Scanned paper does not OCR 100%. It runs the risk of not being fully searchable. This will depend on the age of the paper, quality of the text on the pages, and the effectiveness of the OCR technology. Luckily, much of the OCR technology today is very good with high accuracy rates. However, OCR in litigation does yet scan handwriting. As such, one would expect scans of non-text paper to require some form of production labeling.

It costs an eDiscovery service provider the same amount to scan a piece of paper for being a PDF or TIFF as it does for printing. However, the printing costs can add more to the total cost than simply OCR-ing a scanned file (I have seen as much as 10 cents a page cost increase).

If the requesting party wants to be difficult, they can request both paper be produced as paper to drive up the production cost for the producing party AND demand the production be organized under 34(b)(2)(E)(i). This would fly in the face of Federal Rule of Civil Procedure Rule 1 to conduct cases in a “just, speedy, and inexpensive determination” of every action when scanned paper can be produced as an image with searchable tect. Furthermore, the requesting party would now have boxes of paper to review, driving up their own billable hours.

Review technology allows anyone conducting document review to “tag” files for production that correspond to discovery requests. Unfortunately, many attorneys do not do this, either based on time constraints, the lack of interest in organizing a production for the opposing party, or they do not know how to.

Personally, I prefer conducting document review to organize what files are responsive to specific requests. Moreover, the time it takes to tag “produce” could be done just as easily as clicking “RFP1” or “RFP4” as tagging options. This makes it easier to perform quality assurance testing and the basic need to look up what files are being produced to a specific request.

 

Don’t Call Discovery Over Document Retention Policies Premature After You Admit Destroying Relevant Discovery

A Defendant sought reconsideration of a Court order allowing discovery on their document retention policies and litigation hold strategy on the grounds 1) the order was premature and 2) it was irrelevant and not discoverable. Cactus Drilling Co. v. Nat’l Union Fire Ins. Co., 2014 U.S. Dist. LEXIS 45251, 11-14 (D. Okla. 2014).

The Court denied the motion.


The discovery at issue centered on a key player who left the Defendant’s company whose files were accidently destroyed. The Court stated:

Plaintiff is entitled to inquire into the circumstances of the destruction of such relevant files while this litigation is pending, whether defendants took proper precautions, and whether such precautions were actually exercised by defendants’ employees. Thus, clearly a discovery request on defendants’ document retention and litigation hold practices and policies and whether such policies were followed with respect to Ms. Valerio’s hard copy Cactus file is relevant and discoverable.

Cactus, at *13.

The Court also held that the order was not premature, as the Defendants requested a ruling on whether they had to produce the discovery and witness for deposition in their Joint Status Report. Cactus, at *12.

The parties were ordered to meet and confer over privilege and stipulation issues over the pending discovery. The Court “vented” over the parties prior cooperation in a footnote:

The Court has been disappointed with the parties’ inability to communicate in good faith and work out many discovery issues that could have been resolved between the parties. Such behavior has necessitated repeated intervention by the Court, unnecessarily and significantly depleting the Court and the parties’ valuable time and resources. Accordingly, the Court advises the parties that it will not look favorably on any party engaging in less than good faith behavior that leads to further abuse of the Court’s time and resources.

Cactus, at *14, fn 5.

Bow Tie Thoughts

Discussing the preservation of discovery, its scope and privilege is NEVER premature. These issues should be at the first meet and confer. Attorneys should be actively thinking about preservation the moment the case begins. Lawyers cannot afford to take a “let’s see how the motions go” before ensuring discovery is preserved.

Why do attorneys wait to exercise their duty of competency to ensure the preservation of discovery? Some might not know how to, others might not want to spend the money and others might think they can keep their clients happy by having the least amount of intrusion. These are all bad reasons.

An effective client interview and litigation hold strategy is less invasive then the joys of a person most knowledgeable deposition over how a litigation hold was enacted. Moreover, motion practice is not known for its low billable hours.

There are some lawyers who model their meet and confer strategies right out of Tombstone. This is not a good idea. There are issues worth fighting about, but methods of preservation, the scope of discovery, and other technical issues should stay objective. These issues are vital for moving the case forward, but are not worth brawling over. Save the fight for the merits.

Conferring on Keywords & A Musical Judge

You know someone is taking a hit when a judge works in references to Pink Floyd’s  “Sorrow” and Simon and Garfunkel’s “Sounds of Silence.” Sound the Division Bell, because there is a Bridge Over Troubled Water.


Magistrate Judge Jonathan Goodman did exactly that in Procaps S.A. v. Patheon Inc., 2014 U.S. Dist. LEXIS 35225 (S.D. Fla. Mar. 18, 2014) because of an attorney responding to opposing counsel’s emails with cryptic messages on search terms and their Spanish translations because of a party located in Columbia. Some messages were simply not answered. As such, a motion to compel was filed over search terms. At the hearing, the non-moving party represented they had been in contact with their custodians about search terms.

The short story of what happened is that lead attorney did not get any input on search terms from his clients’ custodians before the moving party filed their motion to compel. Procaps S.A., at 10-11.

Even though the attorney broke their silence over conferring on search terms, the Court ordered the following:

Nevertheless, to the extent that there is any doubt about whether this Court is imposing the requirement and to generate a ruling on which a fees award can be based, the Court grants Patheon’s motion and requires Procaps to have its counsel obtain search word input from all the ESI custodians. The Court may enter further orders on the search term methodology and/or the specifics of the search term list after receiving additional information from Procaps about the search term protocol.

Procaps S.A., at *14.

The Court awarded the prevailing party $3,750 in costs (down from $5000). Procaps S.A., at *16. The Court ordered the lead attorney to pay $1,000 of the award, because “his non-responsive and/or vague email responses triggered this discovery dispute.” Procaps S.A., at *17.  The Court further noted statements on the firm’s website about attorneys with eDiscovery experience who were involved in the case and “urged (though not required) to explore which other attorneys (besides lead trial counsel) caused, or helped  cause, this discovery motion and to determine whether those other attorneys (rather than the firm itself) should pay all or some of the $2,750 fees award now allocated for law firm responsibility (or some of the $1,000 awarded against lead trial counsel).” Procaps S.A., at *17-18.

Bow Tie Thoughts

I respect Jonathan Goodman’s command of the law and use of song references to make his point on an attorney’s silence in conferring over search terms.

Attorneys cannot be another brick in the wall of un-cooperation over Rule 26(f) conferences. eDiscovery requires parties to both 1) confer with the opposing side on the subject matter of the case and 2) conduct client/custodian interviews to determine how technology is used, terms of art, methods of communication and anything else relevant to determine “search terms.”

Discussing “search terms” is not dead because of “predictive coding.” Attorneys still have to know the subject matter of the case in order to use ANY type of advanced analytics so the analysis has content. Lawsuits are about specific issues which have to be defined in order for “technology assisted review,” “visual analytics” or any other form of data clustering to make sense. These topics must be discussed for in order to identify relevant ESI, so efforts are not lost on the dark side of the Moon.

Wishing Browning Marean a Speedy Recovery

Browning Marean is one of the best minds on eDiscovery. He is a friend and recently has been fighting cancer. I wish him a speedy recovery and am very glad he has a favorable prognosis.

One of Browning’s defining traits is caring about others. I have always enjoyed my video calls with him to discuss eDiscovery, the law and life. I have missed those calls while he has undergone treatment.Browning has the voice of a classic sportscaster. Watching him moderate seminar panels with style is always an example of what the gold standard for public speaking.

Please join me in wishing Browning a speedy recovery. To all of those who have visited him during his treatment, thank you for being class acts.

It is also a good reminder there are always those who are fighting an illness, so if you can visit and let them know they are not alone, please do so.

You Want $60,572.61 in Costs? Here is $25.48

It is not a good day when you seek $60,572.61 for eDiscovery costs as a prevailing party and only get $25.48.

Don’t spend it all in one place.

The Court denied the eDiscovery costs applying Race Tires America, Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 2012), because “eDiscovery costs” are not “costs of making copies” under the taxation of costs statute 28 U.S.C. § 1920(4). Thompson, I.G., L.L.C. v. Edgetech I.G., Inc., 2014 U.S. Dist. LEXIS 23189, 6-9 ( E.D. Mich. Feb. 25, 2014)

The only costs the Court allowed was the 10/12/2012 invoice for “Electronic File Conversion” for $25.48.

Bow Tie Thoughts

I am strongly in favor of updating our taxation of costs statute to include recovering collection and processing costs of electronic discovery. These steps actually are making a “copy” of the data. However, many Courts have not recognized how the collection and processing of data is “making a copy.”

Service providers can help their attorney clients by explaining how collection was done and why the collection was done using a specific methodology. The same for processing and using technology assisted review. These invoices cannot simply say it was “necessary for the case.” Those are not magic words that grant cost recovery.

Judges need to understand the technology and reasons why steps were taken to know why something was “necessary.” These cannot be simple declarations “it was necessary.” Help the judge understand how and why technology was used to create a defensible sound copy of the ESI, and the following steps to identify relevant information.

What is the Form of Production for a Database?

Search-Data

Defendants in a discovery dispute produced data from a timekeeping database as PDF’s.

The Plaintiffs objected, arguing their expert would need to spend 300 to 500 hours converting the PDF’s into a database.

The Defendants countered that it would take a team of three to four people between three to four days to write a script to convert their timekeeping export to a report in a .CVS format, because the system natively exported PDF’s as its reporting feature. Castillon v. Corr. Corp. of Am., 2014 U.S. Dist. LEXIS 17950, 9-10 (D. Idaho Feb. 7, 2014).

So, what is the proper form of production of the data?

The Court explained that the Plaintiffs did not state the form of production in their request. As such, the Defendant had to produce the ESI as it is ordinarily maintained or in a reasonably useable form pursuant to Rule 34. The Court found that the Defendant had “sufficiently shown that any report or other extraction of data from the Kronos system is natively produced in a searchable .pdf format. Because Defendant has already produced the Kronos data in that format, it is not required to re-produce it in a different form.” Castillon, at *9-10.

The Court further stated that searchable PDF’s is a reasonably useable form that could be “easily searched.” Castillon, at *10.

Bow Tie Thoughts 

The Star Trek fan in me did not at all find it ironic that data from a timekeeping system named Kronos would end up in a discovery dispute, because it is after all the Klingon home world.

Geeks aside, it is very important to think about how you want to review data from a database when drafting a discovery request. What form will best help your expert? Has this issue been discussed at the meet & confer? Since a searchable database would likely  benefit both parties if discussed at the Rule 26(f) conference, would both parties be willing to split the cost of preparing a script?

These issues are best resolved prior to motion practice. Litigation often has surprises such as this one. Finding out the format of database exports is a very important topic to add to a Rule 26(f) conference if you expect a database to be at issue in a case.

Don’t Forget to Produce Email Attachments

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A defendant law firm in a fee dispute were ordered to produce specific email communications. The law firm produced email messages in PDF format without attachments. The Defendants claimed in a meet and confer they could not produce attachments from the server, but did not explain why. Skepnek v. Roper & Twardowsky, LLC, 2014 U.S. Dist. LEXIS 11894, at *3-4 (D. Kan. Jan. 27, 2014)

LeslieCrystal_Really_EmailIt is never good to have a Judge state, “It is unclear why defendants claim that it is impossible to include every attachment to the produced e-mails but somehow, they are able to produce specific attachments upon request.” Skepnek, at *4.

The Defendants attempted to make the case about the Plaintiffs not stating the form of production in their request.

The Judge did not take the bait and focused on the real issue in the case: the failure to produce the responsive files. Skepnek, at *6.

The Court ordered the production of the attachments, explaining its order as follows:

Defendants offer no excuse for their failure to produce responsive documents except that plaintiffs never requested the documents in native format. Plaintiffs simply want the documents that the court ordered defendants to produce, regardless of format. Because plaintiffs failed to specify a form for producing the electronically stored e-mails and attachments, defendants were required under Rule 34(b)(2)(E)(ii) either to produce the e-mails and attachments in the form (1) in which they are ordinarily maintained, or (2) “in a reasonably usable form.” Defendants failed to produce the attachments at all. Defendants also failed to show PDF format is the form in which their e-mails and attachments are ordinarily maintained.

Skepnek, at *6.

Bow Tie Thoughts

Lawyers often get into trouble with the production of electronically stored information because they do not retain anyone to handle the collection, processing or production of data. Many think their client’s IT staff can somehow “just do it” and avoid the cost of hiring a service provider.

Problem with that logic: You’re doing it wrong.

That is a lot like thinking an auto mechanic charges too much for a break job, so just have your 10 year old do it instead. Since the kid made a great Pinewood Derby car, he should be able to fix the Audi. What could possibly go wrong?

The duty of competency requires lawyers to hire experts to solve technical issues. The collection of ESI and processing are two such areas. Moreover, the technology is constantly advancing. I have watched very impressive product demonstrations of many software applications. Producing email with attachments is something service providers have been doing for over a decade. There are even YouTube videos showing how the technology works. There really is not an excuse from a technological perspective on why email was not produced with attachments in native file format.