Utilitarian e-Discovery: A Challenge for the Litigation Support Profession

I always liked John Stuart Mill’s utilitarian views on justice to provide the greatest happiness for the greatest number of people, within reason. 

I propose Utilitarian e-Discovery.

All the vendors in the litigation support profession produce many fine products and solutions for large scale e-Discovery services.  I have a challenge to everyone in the litigation support profession:

Go to your local state courthouse.

Spend one hour watching the case management conference calendar. 

Ask yourself, “Do our products help these attorneys and their clients?”

93% of litigation in the United States is in state courts, not the Federal (CEIC Judicial Panel, 2010). 

According to the ABA, there were a total of 1,143,358 lawyers in the United States in 2007. 

There is other data that shows 75-80% of lawyers practice in firms with 20 attorneys or less (estimated 857,519 lawyers with 2007 numbers). 

My concern for our industry is that products are being developed only for those in the top 7% of litigation in Federal Court. 

Hosted litigation support services are not practical for many, if not all, of the attorneys in the 93% group.  Consider the following:

State court action worth $90,000.00

Attorney and Paralegal Monthly Hosting Fee: $160.00

Monthly case fee (small case): $600

Total Monthly Fees: $760

Estimated length of case: 20 months

Estimated total hosted costs: $15,200.00

Also consider… 

Cost of two litigation software licenses: Capital Expense of $5,000.

Estimated Expert Cost to Prepare Self-Executing Collection Device: $500 (2 hour)

Collection Executed by the Client, Affidavit Signed & Device Returned: $0

Estimated Processing, Data Reduction & Load File Creation: $500.00

Estimated Cost to the client: $1,000.00

To be blunt, most “normal” litigants simply cannot afford another $760 a month in legal fees for data hosting.  Access to the Courts is not limited to Fortune 100 companies.

The leaders in software solutions for law firms are CT Summation (now Access Data Group), Lexis Nexus Concordance and Caselogistx.  These products have set the gold standard for litigation support software.  Many other programs now exist. 

Despite these great products on the market, there is a need for a very basic discovery management tool that would just be for depositions and ESI/documents.  It would help even more if a new product or existing ones could be available as an “elements” or “light” edition at office supply stores for less than $500. 

The profit on such a product would be significant even if only 100,000 of the estimated 857,519 attorneys in small firms purchased such a commercially available product.  As these small firms get larger cases, the full product version or hosting models become economically sustainable for these attorneys. 

Market solutions are coming out designed to drive down e-Discovery costs.  Guidance Software with their EnCase Portable device and PinPoint Labs with OneTouch provide cost-effective solutions for keeping collection costs under control.  These devices can be prepared by an expert for self-executing collection.  The client only needs to plug the device into the USB port and follow the instructions.  Other forensic companies such as Microforensics Titan and Paraben Corporation also have cost controlling tools for defensibily collecting electronically stored information. 

We support a professional that helps those in legal need.  To provide a “greatest happiness principle” to help those attorneys do justice, the profession needs cost-effective solutions.  The failure to meet this market need is justice for none.

One Year Later: A California Metadata Case

June 29, 2010 marks the first anniversary of the California Electronic Discovery Act.  It is unlikely there are any decorations at state courthouses celebrating the date. 

There are many California judges, attorneys and bar associations preparing educational events on e-Discovery.  However, there are few cases directly addressing electronically stored information and the one year old law.

One of the first (unpublished) metadata cases in California was a criminal prosecution involving photos and assault.  The Court summarized metadata of the photos as “information like date, time and exposure that is recorded when an image is captured.” See, People v. Wood, 2009 Cal. App. Unpub. LEXIS 9959, 11-12 (Cal. App. 4th Dist. Dec. 17, 2009).

A photographer expert testified on the metadata from over 4,000 photos, creating a chronology of when each photo was taken down to the minute.  The expert also explained on cross-examination how metadata can be altered.  Wood, at *11-12. 

This was one of the first cases addressing metadata after the enactment of the California Electronic Discovery Act…yet had nothing to do with the Act.  This was a criminal case. 

Judges, special masters and discovery referrers will have to address electronically stored information.  It is only a matter of time before a California judge finds herself with a dispute over the form of production and associated metadata fields.  When that day comes, the entire state should listen closely.

California Dreaming from Legal Tech West Coast 2010

Legal Tech West was held on June 23 & 24 at the Los Angeles Convention Center. 

The first day of the show coincided with a few thousand new United States Citizens taking their oath of citizenship.  It was a beautiful display of our Constitution at work and a very fitting way to begin Legal Tech West.

The content and networking at the show was overall excellent. 

David Lazarus' Keynote

David Lazarus’ keynote speech on privacy was haunting. 

The issues ranged from identity theft to the cost to prosecute those who have stolen your identity to ways to enhance our privacy protections. 

In short, there needs to be more “opt in” clickwrap agreements online instead of opt out ones.

The session with Judge David Waxse provided insight on the state of e-Discovery in Federal Court.  For example, the judge thinks preservation has turned into a game that generates huge costs. As such, Judge Waxse wants to see a link between an issue in a case and a claimed preservation violation.  Moreover, Judge Waxse believes that there is no reason to image ESI because of the cost, unless a party can explain their need to convert ESI to an image. 

Judge Waxse

Craig Ball’s panel discussion on forensics with participants from law enforcement, medical examiner and a coroner was very well done in dissecting the crime drama shows from reality.

Craig Ball

There was of course the exhibit hall.  One new product I enjoyed was the Mobile Transcript App for the iPhone (it can also be installed on the iPad or BlackBerry).  This could be a useful product for a lawyer on the go who needs to check on a deposition transcript while at a hearing or a panic attack in the middle of the night.  Mobile Transcript has a high cool factor, even though nothing beats deposition review in a litigation support product as a practical matter.

I think it is a matter of time before one of the hosted applications develops an iPhone app for secure review for an attorney who needs to look up a case issue while out of the office. 

D4 and Legal Hold Pro hosted the social event “Legal Holdem: Don’t Gamble with your Case; Issue a Litigation Hold.” The social hour was well attended and a great success. 

The Legal Holdem with D4 & Legal Hold Pro

Legal Tech West was overall a good show as an attendee.  The action on Twitter was impressive and I look forward to Legal Tech New York. 

A Judicial Love Bite: Initial Disclosures Mean Initial Disclosures

Every now and then, rules with teeth will leave a love bite.  This is one of those cases. 

The Plaintiffs identified 31 documents in their initial disclosures.  However, none of these were produced because of a claimed computer crash.  Pinkney v. Am. Med. Response, Inc., 2010 U.S. Dist. LEXIS 56465, 1-3 (D. Nev. May 12, 2010).

The Defendants in turn brought a motion to compel.

 

Rules for Disclosures

Pursuant to Federal Rule of Civil Procedure Rule 26(a)(1), a party must produce “a copy-or a description by category and location-of all documents, electronically stored information, and tangible things that the disclosing party . . . may use to support its claims or defenses. . .”  Pinkney, at *7. 

A party must also supplement or correct their initial disclosures if they learn their original disclosure is incomplete or incorrect.  Pinkney, at *7, citing Federal Rule of Civil Procedure Rule 26(e)(1). 

The failure to follow Rules 26(a)(1) and 26(e)(1) can take your arm off; these rules have razor sharp teeth. 

Federal Rules of Civil Procedure Rule 37(c)(1) punishes those who fail to comply with Rule 26 by forbidding the trial use of any non-disclosed information.  Pinkney, at *7. 

A Judicial Nibble

The Court ordered the Plaintiffs to produce the information identified in their Rule 26(a) initial disclosures.  If they did not, the Plaintiff could not use any of the information themselves.

Bow Tie Thoughts

As the Def Leppard classic goes, Love Bites.  So Does Federal Rule of Civil Procedure Rule 37(c)(1).

The failure to disclose or supplement discovery is a sure fire way for a judge to show his dorsal fin and take a bite out of a party.  Hard drive failures are not uncommon and parties are well served by preserving their electronically stored information with any of the commercially available products that can do a targeted collection. While some might claim this is “expensive,” so is motion practice that still ends with you having to produce the data.

I Have this Favor to Ask of You: Don’t Betray the Family with Third-Party Discovery

You should never betray the family…and one such betrayal resulted in trademark litigation over Mafia Wars. 

Now You are Part of the Family

For those not familiar with Mafia Wars (or you spend a lot of time clicking “Ignore”), it is a game on social networking sites such as Facebook.  Players earn “virtual currency” for “Virtual Goods” on the game by doing “jobs.”  Zynga Game Network, Inc. v. Williams, 2010 U.S. Dist. LEXIS 57746, 1-3 (N.D. Cal. May 20, 2010).

The Plaintiffs brought an action (or job) against the Defendants for the unauthorized sale of “Virtual Goods” with three infringing domain names and related services.  The allegedly infringing websites allowed players to compete against other Mafia Wars users who obtained their own Virtual Goods from the Plaintiff.  Due to this infringement, lawyers were brought in to whack the Defendants. 

What is the Interest for My Family?

The Plaintiff needed to identify who exactly were the infringing Defendants that crossed the family.  Instead of solving the problem the Chicago Way, they sought third-party discovery from GoDaddy.com, Inc., Microsoft Office Live, and Paypal.  In short, they were following the money. 

The third-parties were each sent a virtual horse head in the form of a Federal Rule of Civil Procedure Rule 45 subpoena. 

The Plaintiff sought from GoDaddy and Microsoft “all billing and account records (including all Internet domain names), server logs, website content, contact information, transaction histories and correspondence for the persons or entities that have purchased services from [pertinent hosting site name] in connection with the Internet domain names…” Zynga Game Network, Inc., at *7-8. 

The request against PayPal sought “all billing and account records, server logs, contact information, transaction histories and correspondence for the persons or entities that have established accounts with PayPal, Inc.,…” related to specific email addresses used by the Defendants.  Zynga Game Network, Inc., at *8. 

Settling Family Business: Third-Party Requests

Once the moving papers were wrapped around a fish, the Court summarized the requirements for a Rule 45 request. 

Rule 45 enables a party to subpoena third-parties for electronically stored information (in addition to other discovery).  Zynga Game Network, Inc., at *4.  The scope of Rule 45 is same as Rule 34 requests on a party and limited by Rule 26.  Id.    

The following are the limiting factors under Federal Rule of Civil Procedure Rule 26(b)(2)(C)(i)-(iii):

(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;

(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or

(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

Zynga Game Network, Inc., at *5.

The Ninth Circuit requires “good cause” if a party is seeking discovery prior to the Rule 26(f) meet and confer.  Zynga Game Network, Inc., at *5, citing In re Countrywide Fin. Corp. Derivative Litig., 542 F. Supp. 2d 1160, 1179 (C.D. Cal. 2008).  Good cause is often applied and found in infringement cases.  Zynga Game Network, Inc., at *6.

Your Sins are Terrible: The Test for Limited Discovery

The four-part test to conduct limited discovery to find the Defendants:

(1) Identifying the Defendants with enough specificity to allow the Court to determine whether the Defendants are a real person or entity who could be sued in federal court;

(2) Recounting the steps taken to locate the defendant;

(3) Showing that its action could survive a motion to dismiss; and

(4) Filing a request for discovery with the Court identifying the persons or entities on whom discovery process might be served.

Zynga Game Network, Inc., at *6-7, citing Columbia Insurance Co. v. Seescandy.com, 185 F.R.D. 573, 578-80 (N.D. Cal. 1999).

The Plaintiffs argued they met the four-part test, because of the following:

            1) The Defendants created and operated the infringing websites;

            2) The Plaintiffs tried identifying the Defendants with the Whois public database; examining other websites; reviewing source code from the websites; and trying to contact the Defendants at their listed addresses;

            3) The Plaintiff demonstrated the Defendants violated the Plaintiff’s trademarks;

            4) The limited discovery would allow the Plaintiff to identify the Defendants.

            Zynga Game Network, Inc., at *7.

Only Don’t Tell Me You’re Innocent…

The Court granted the Plaintiff’s limited discovery…in part. 

The Court stated that “limited” discovery required the Plaintiff narrow their requests to only what was needed to determine the Defendants’ true identities and locations.  Zynga Game Network, Inc., at *9.

The Court allowed the limited discovery as follows:

Subpoena on GoDaddy to produce “all documents necessary to obtain the name, current and permanent addresses, telephone numbers, and valid e-mail addresses of the owner(s)” of the infringing websites to identify and locate of the Defendants.

Subpoena on Microsoft to “produce all documents necessary to obtain the name, current and permanent addresses, telephone numbers, and valid e-mail addresses of the owner(s)” of the infringing websites to identify and locate of the Defendants.

Subpoena on PayPal to “produce all documents necessary to obtain the name, current and permanent addresses, telephone numbers, and valid e-mail addresses of the  person or entities that have established accounts with PayPal, Inc…”   

Zynga Game Network, Inc., at *10-11. 

Bow Tie Thoughts: It’s Not Like the Old Days…

In the age of social networking, free apps and instant downloads, trademark infringement can move at lightening speed.  Moreover, those infringing can hide behind a domain name and dummy email address with great ease.  Third-party requests to identify infringing parties will likely be a frequent application in Federal court.

How to Get a Judge to Overcome the Guilt of Ordering the Forensic Examination of a Personal Computer

Judges loath ordering the forensic imaging of personal computers.  Here is a case where that was not a problem for the Court. 

In Genworth Fin. Wealth Mgmt. v. McMullan, the Plaintiffs brought a motion to compel the Defendants to produce their computers for forensic imaging, plus a preservation order and attorneys’ fees for sanctions.  Genworth Fin. Wealth Mgmt. v. McMullan, 2010 U.S. Dist. LEXIS 53145, 18-19 (D. Conn. June 1, 2010)

The case involved former employees who formed a competing company. 

The Defendants started their new company with client data from the Plaintiff, allegedly in violation of the Computer Fraud and Abuse Act, the Connecticut Uniform Trade Secrets Act, the Stored Communications Act, and common law tortious interference with business relationships. Genworth Fin. Wealth Mgmt. at *4.

The Defendants claimed they identified all their business prospects from Internet searches and memory. Genworth Fin. Wealth Mgmt. at *4-5.

The Plaintiffs sent a preservation letter to the Defendants in August 2009.  Genworth Fin. Wealth Mgmt. at *5.  The lawsuit was filed in September 2009 and discovery propounded in November 2009 for electronically stored information and metadata.  Id.

The Defendants did not produce any email, their client management database or their invoicing database.  Genworth Fin. Wealth Mgmt. at *5.

The Plaintiff wanted confirmation that the Defendants’ computers were forensically imaged, out of the concern that ESI could be lost though routine operating procedures such as auto-delete.  Genworth Fin. Wealth Mgmt. at *6. 

However, the Defendants had no intention to forensically image any of their computers.  Genworth Fin. Wealth Mgmt. at *6. 

The Plaintiffs in turn brought the motion to compel, which prompted the Defendants seven days later to hire a consultant to image their business computers. Genworth Fin. Wealth Mgmt. at *6. 

An evidentiary hearing produced some exciting emails…from the Defendants’ personal email accounts.  Genworth Fin. Wealth Mgmt. at *6.  ESI produced from Charles Schwab, the Defendants’ custodian of assets, showed data sent by one of the Defendants’ personal email accounts with Plaintiff’s data during the time while one of the Defendants was still employed by the Plaintiff.  Genworth Fin. Wealth Mgmt. at *6.  None of this information had been produced by the Defendants.  Id. The data was used to establish the Defendants’ new company and secure clients.  Id. 

One of the Defendants “discarded” the personal computer he used with the Plaintiff’s data that was sent to Charles Schwab.  Genworth Fin. Wealth Mgmt. at *6-7.

The computer was possibly “discarded” after the Plaintiff sent a preservation letter to the Defendants.  Genworth Fin. Wealth Mgmt. at *7.

Discovery Rules Recap

A demanding party may request the inspection, testing or sampling of electronically stored information pursuant to Federal Rule of Civil Procedure Rule 34(a).  Genworth Fin. Wealth Mgmt. at *8.

The right to access such ESI is balanced against the producing party’s privacy rights.  Id. As stated in the 2006 Advisory Committee Notes, “a routine right of direct access to a party’s electronic information system, although such access might be justified in some circumstances.” Genworth Fin. Wealth Mgmt. at *8.

Searching Personal Computers

In determining whether to examine personal computers, the Court cited the following factors: 

[C]onsider the relationship between the plaintiff’s claims and the defendants’ computers and, in some cases, whether the defendant has fully complied with discovery requests, in determining how the requested electronic discovery should proceed. Even in cases where courts have nonetheless adopted procedures to protect privilege and privacy concerns.

Genworth Fin. Wealth Mgmt. at *8, citing Calyon v. Mizuho Securities USA Inc., No. 07 CIV0224IRODF, 2007 U.S. Dist. LEXIS 36961, 2007 WL 1468889, at *3 (S.D.N.Y., May 18, 2007).

The Court further relied on Ameriwood Industries, Inc. v. Liberman, No. 4:06 CV 524-DJS, 2006 U.S. Dist. LEXIS 93380 (E.D. Mo. Dec. 27, 2006), amended by 2007 U.S. Dist. LEXIS 98267 (E.D. Mo. Feb. 23, 2007), where a prior court ordered a neutral expert to create a mirror image of a computer.  Genworth Fin. Wealth Mgmt. at *9.

The Ameriwood court described the privacy concerns and justifications for inspecting a personal computer: 

Courts have been cautious in requiring the mirror imaging of computers where the request is extremely broad in nature and the connection between the computers and the claims in the lawsuit are unduly vague or unsubstantiated in nature. For example, a party may not inspect the physical hard drives of a computer merely because the party wants to search for additional documents responsive to the party’s document requests. [A court has previously] declined to allow the examination of any ESI other than the information that had been deleted because the requesting party had not demonstrated that the producing party was unwilling to produce relevant evidence. [Evidence] raises the question of whether defendants have in fact produced all documents responsive to plaintiff’s discovery requests. Furthermore, in cases where a defendant allegedly used the computer itself to commit the wrong that is the subject of the lawsuit, certain items on the hard drive may be discoverable. Particularly, allegations that a defendant downloaded trade secrets onto a computer provide a sufficient nexus between the plaintiff’s claims and the need to obtain a mirror image of the computer’s hard drive.

Genworth Fin. Wealth Mgmt. at *10-11, citing Ameriwood, 2006 U.S. Dist. LEXIS 93380 at *4.

The Ameriwood court devised a three-part image & production protocol:

1) “Imagining”: The parties select a computer forensic expert to image the computer(s).  The forensic expert is bound by a confidentiality agreement.

2) “Recovery”: The work performed by the forensic expert to recover data off the computer, such as email messages, Word documents and deleted data.

3) “Disclosure”: Defense counsel allowed to review the production for privilege and responsiveness prior to production. 

Genworth Fin. Wealth Mgmt. at *11-12, citing Ameriwood, 2006 U.S. Dist. LEXIS 93380 at *5-7.

The Court found that forensic imaging of the Defendants’ computer by a neutral expert was the only way the Plaintiff could review the Defendants’ email and other ESI.  Genworth Fin. Wealth Mgmt. at *12-13.  The Court followed the reasoning from Ameriwood and crafted a similar remedy. 

The Defendant had used his own computer to download and email the Plaintiff’s business property while setting up a competing business.  Genworth Fin. Wealth Mgmt. at *13.  Moreover, the Defendant admitted that he destroyed evidence when he deposed of his personal computer in a trash can.  Genworth Fin. Wealth Mgmt. at *14.

Making things worse for the Defendant (and better for the Plaintiff), the Defendant provided false testimony on the timing of his emails to Charles Schwab and the destruction of his computer.  Genworth Fin. Wealth Mgmt. at *13-14. 

The client data the Defendants used was also highly detailed and specific.  The Court found that the Defendants recreating the client list from memory to be far-fetched.  Genworth Fin. Wealth Mgmt. at *14. 

The fishy story, if not outright lies, probably made the Court’s order all the easier to issue. 

The Court Order

The Court found that the Plaintiff had offered enough evidence that there was a nexus between the Defendants’ computers and the claims in the lawsuit to justify a mirror image of the hard drives.  Genworth Fin. Wealth Mgmt. at *14-15. 

The Court provided a detailed order, requiring the following:

1) The parties select a neutral expert who would be bound by a confidentiality agreement.  Genworth Fin. Wealth Mgmt. at *17. 

2) The Defendants would make all responsive computers, and personal devices, available to the expert.  Genworth Fin. Wealth Mgmt. at *17-18.

3) The expert was to image the computers and organize the data in a reasonably searchable form.  The data was to be provided to the Defendant and notice given to the Plaintiff.  Genworth Fin. Wealth Mgmt. at *18.

4) Set time for the Defendants to review the data for privilege and responsiveness.  The Defendant was also ordered to produce a privilege log that complied with the Federal Rules of Civil Procedure. Genworth Fin. Wealth Mgmt. at *18.

5) Cost allocation of 80% for the Defendants & 20% for the Plaintiff for the computer expert.  Genworth Fin. Wealth Mgmt. at *18.

6) Attorneys fees for the Plaintiff.  Genworth Fin. Wealth Mgmt. at *18-19.

7) The blunt order that the “Defendants shall meet their data preservation and production obligations and will face further sanction for failure to comply with such requirements.” Genworth Fin. Wealth Mgmt. at *19.

Bow Tie Thoughts

Federal Judges despise the idea of ordering the forensic image of a personal computer.  However, if a requesting party can show a nexus between the claims of a lawsuit and the producing party’s computer, chances are good they can they will be able to get relevant data off of the machine.  Throw in the destruction of evidence and a shady story, it is almost a guarantee.  Lying to the judge never ends well. 

There is a big “however”: The requesting party does not get to simply forage through the producing party’s computer.  Courts will go to great lengths to protect privacy interests.  One way to protect these privacy interests is to appoint a neutral third-party expert who is subject to a confidentiality agreement to image the machine.  Even then, the producing party will have an opportunity to review for privilege.

Ensuring Searchable Production Formats (Or Don’t Tick off the Judge)

Parties should be very careful when Courts start referring to a party’s views on electronically stored information as “dismissive.”  More importantly, if a party boasts that they use a litigation support system on their website, don’t be surprised if the Court discusses that fact with the URL in an opinion. 

A Discovery Brawl

In a lengthy opinion that can best be described as a discovery brawl, the Court weighed in on numerous discovery disputes.  The Defendants in the case had a cavalier view of discovery and proudly sang their own praises for producing “over 21,000 documents” to their opponents.  Camesi v. Univ. of Pittsburgh Med. Ctr., 2010 U.S. Dist. LEXIS 50769 at *11 (W.D. Pa. May 24, 2010).

The Court’s view was slightly different:  

While Defendants have repeatedly trumpeted their production to date of “over 21,000 documents,” this seems hardly an overwhelming number given the complexity of this case and the number of parties involved. In their Firm website, Defense counsel emphasize their “broad experience in complex, multifaceted civil litigation,” including their use of “computerized document management, an invaluable tool for organizing the massive number of documents generated in complex litigation and helping to reduce the cost of litigation.” at *11.

Camesi,

Don’t be Dismissive of e-Discovery

The parties had several disputes regarding the production of electronically stored information. 

The Court questioned whether the Defendants had taken their e-Discovery obligations seriously and described the Defendants’ view as “seemingly dismissive” in their responses to the Plaintiffs’ ESI proposals.  Camesi, at *23-24. 

The Court ordered the parties to meet and confer over their disputes, but gave the Defendants some very specific “guidelines” that sounded more like orders.  Camesi, at *23. 

The Defendants were required to “ensure” that all electronic files were produced in a searchable format.  Camesi, at *23.  The Court went on to state:

Preferably, and absent a clear showing of substantial hardship and/or expense, Defendants shall supplement their production by reproducing ESI in its native format. Although a clear showing of undue hardship and/or expense may excuse Defendants’ production in native format, the fact that such a production may be more useful or cause less expense to Plaintiffs obviously will not. 

Camesi, at *23.

Whatever arguments the Defendants waged against producing metadata fell on deaf ears.  The Court found that the Defendants’ production of metadata would “promote the interests of justice,” especially given the Defendants’ electronic storage systems.  Camesi, at *23.

The parties were not only required to meet and confer with 7 days of the Court Order, but “to seek input from persons possessing technical expertise to assist them” if necessary.  Camesi, at *24. 

Bow Tie Thoughts

This case has several lessons learned:

1)       If you state knowledge on your website, don’t be surprised the Judge has read up on you.

2)     If you claim complex litigation skills, don’t come off as dismissive about e-discovery.

3)     If the Judge orders you to ensure the electronically stored information is produced in a searchable format, do it.

On a serious note, most lawyers do not have computer engineering degrees or have in-depth knowledge on the processing of electronically stored information.  Working with an expert who understands the processing of ESI, plus defensible data reduction strategies, will only help an attorney effectively represent their clients in a meet and confer over electronically stored information.

A Practice Point in Agreeing to the Form of Production

In a products liability case, the Plaintiffs claimed they could not tell if the Defendants produced electronically stored information in the form it was ordinarily maintained. In re Bisphenol a Polycarbonate Plastic Prods. Liab. Litig., 2010 U.S. Dist. LEXIS 52444 (W.D. Mo. May 26, 2010).

Federal Rule of Civil Procedure Rule 34(b)(2)(E) states that electronically stored information must be produced in the form it is ordinarily maintained or a “reasonably usable for…” In re Bisphenol a Polycarbonate Plastic Prods. Liab. Litig., at *34.

The Plaintiffs took the position that the Defendants did not provide any proof how their ESI was ordinarily maintained, thus could not tell if the producing party complied with Federal Rule of Civil Procedure Rule 34(b)(2)(E) and their agreed upon production format that was codified as a court order.  In re Bisphenol a Polycarbonate Plastic Prods. Liab. Litig., at *35.

The opinion is silent on what form was exactly produced, leaving us to wonder if there were signs of form of production gamesmanship.

The Court coldly held the parties got what they bargained for.  While the parties agreed to a production format, the agreement did not include any proof requirements that the electronically stored information was produced in the form it was maintained.  As such, the Court denied the Plaintiffs’ request.

Bow Tie Thoughts

This short and blunt result is a warning to be specific in production formats that are later codified as a court order.  Moreover, it is unknown what the producing party actually produced or whether the requesting party had any expert assistance in demonstrating the ESI was not produced as it was ordinarily maintained.  Whatever the facts of this case, it is a warning to understand the data in a discovery request, the form of production sought and the importance of expert assistance in agreeing to a production format.