Speedy Delivery: Compelling Imaging & Searching of Everything

In a contract dispute regarding a shipping vendor, the Plaintiff brought a motion to compel the collection and processing of the entire contents of Defendants’ hard drives, network drives, and user files.  Unishippers Global Logistics, LLC v. DHL Express (USA), Inc., 2009 U.S. Dist. LEXIS 94844 (D. Utah Oct. 12, 2009).

In not much of a surprise, the Court said “No.”

Please Sign Here: Meet & Confer over Custodians

As the discovery dispute began, the parties agreed to provide each other a list of custodians to be searched for responsive documents.  Unishippers Global Logistics, at *4.  The Defendants identified 13 opposing custodians and the Plaintiff 36 custodians.  Id. 

The litigants agreed to produce “all emails between or among the custodians” and to perform searches on internal and external email networks.  Unishippers Global Logistics, at *4. 

The Dispute: Imagining Network Files, User Files & Hard Drives

The Plaintiff claimed the Defendant refused to “image and search the network files, user files, and the hard drives of its identified custodians for responsive documents.” Unishippers Global Logistics, at *4. 

 One can imagine the Gigabytes very quickly expanding for ESI review with 36 custodians…

The Motion to Compel

You can sense the Court was not happy with the Plaintiff.  They failed to comply with local rules on discovery disputes and brought the motion to compel without first receiving or reviewing the Defendants’ production.  Unishippers Global Logistics, at * 6.

The Plaintiff wanted the Court to order the Defendants to “conduct relevant word searches of its custodians’ user files, network drives, and individual hard drives for responsive documents.” Unishippers Global Logistics, at * 6.  Moreover, the Plaintiff took issue with the Defendant collecting and reviewing email from custodians and collecting non-duplicative ESI from other sources, and then producing accordingly.  Unishippers Global Logistics, at * 6. 

The Defendants opposed the motion as premature and that the Plaintiff wanted everything electronic searched.  Unishippers Global Logistics, at * 6.

The Court Order

The Court held the Plaintiff’s arguments were without merit. Unishippers Global Logistics, at * 7.

First, it is self-evidence that a producing party “must determine whether it possesses relevant documents that are responsive to a particular discovery request.” Unishippers Global Logistics, at * 7.  To be blunt, that is just how document review and discovery works. 

Secondly, the Court held it was unnecessary and unduly burdensome to force the Defendant to “collect and process the entire contents of the custodians’ hard drives, network drives, and user files,” that were known to be non-relevant.  Unishippers Global Logistics, at * 7.  

Third, the Defendant explained their email discovery protocols, which the Court seemed to accept as defensible.   Unishippers Global Logistics, at *8-9.   

The Court based its ruling on Federal Rule of Civil Procedure Rule 26(b)(2)(C) which states a court “must limit the frequency or extent of discovery . . . if it determines that . . . 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.” Unishippers Global Logistics, at * 7, citing  Fed. R. Civ. P. 26(b)(2)(C)(i).  Moreover, a court must also limit discovery where “the burden or expense of the proposed discovery outweighs its likely benefit.” Unishippers Global Logistics, at * 7-8, citing Fed. R. Civ. P. 26(b)(2)(C)(iii).

Bow Tie Thoughts

This motion probably could have been dismissed as not ripe or for procedural defects.  Additionally, the Plaintiff would have been in a much stronger position if they actually had reviewed the Defendant’s production. 

The Plaintiff did not make an articulable basis that the Defendant somehow failed in their discovery production, such as a Rule 26(g)(1) violation.  However, if there are later production discrepancies, we may see a follow up to this case.

101 Bow Ties

My 101^st post is different than any of my other postings to date: Here is the story behind the Bow Tie Law Blog and my thoughts on the practice of law.

I have an amazing career.  While I was at CT Summation, I traveled to Alaska, across Canada, met with judges and saw classic Americana with witnessing the lighting of the Christmas Tree in Rockefeller Plaza and the dying of the river green in Chicago.  My adventures have continued with D4 LLC, including a visit to Niagara Falls after one seminar and I am publishing this blog while I am in US Virgin Islands for a full day e-Discovery event. 

Stay tuned for a new webinar campaign this Fall, Paraben’s 2^nd Annual Forensic Innovation Conference and a mock trial with the Beverley Hills Bar Association. 

Reasons for the Bow Tie Law Blog

I love the law.  I also love the intersection between law and technology.  This began in law school studying the pilot program for PACER and as a research assistant for Professor Fred Galves on his article Will Video Kill the Radio Star? Visual Learning and the Use of Display Technology in the Law School. For the record, I came up with the homage to the Buggles.

I started the Bow Tie Law Blog in December 2008.  While it was not the best of times (I had been laid off by a litigation support vendor), BTLB provided me an opportunity to discuss current cases and e-Discovery issues.

My First Litigation Support Software

I first used CT Summation LG Gold 2.6 and Trial Director on a project that was originally supposed to be three months.  It lasted thirteen.  The case went all the way through motions in limine before we settled. 

I learned a lot on that case.  First, it was easier to search through a database then climb into a document repository.  Second, a small firm that can “command evidence” with a litigation support database can take on a larger firm with a small army of associates on a case.

One thing I learned about scanned paper: Get the project OCR-ed.  We had thousands of TIFFs that we had to search and annotate without the benefit of optical character recognition processing.  We could have saved hours if we had the ability to search the text of those TIFFs.  Auto Coding would have been Heaven. 

The Future for Lawyers

Technology’s effect on how we live our lives is told in glowing hymns by Don Tapscott in grown up digital and negative thunderbolts by Mark Bauerlein’s The Dumbest Generation.  Regardless of whether you agree with these authors, people are walking ESI generators. 

There are 160,000 active lawyers in the State of California (217,000 if you count the inactive members).  All must consider electronically stored information since the enacted of the California Electronic Discovery Act on June 29, 2009 and the California Rules of Court 3.724 requiring ESI to be discussed in the meet and confer process. 

The immediate future for lawyers in California, the Federal Courts and nearly every state in the Union is to understand electronically stored information.  Lawyers must be aware of requesting cell phone photos after a car accident; Lawyers must be aware of how to review ESI with litigation review software; and lawyers must know how to effectively communicate litigation holds to their clients and be able to intelligently discuss ESI with their opponents and the Courts.

These challenges are not insurmountable, but will require an active effort to learn about forms of production, work with trusted vendors and educate their judges on their clients’ electronically stored information. 

A Big Thank You

I look forward to my next 100 blog postings and appreciate everyone following me on Twitter, Gabe’s Guide, The Posse List and Complexd.

Don’t Argue Imaginary ESI Production Problems

In re NetBank, Inc., 2009 U.S. Dist. LEXIS 69031 (N.D. Ga. Aug. 7, 2009) has form of production arguments that illustrate the need to understand the processing abilities of electronically stored information applications and review in litigation support software. 

The Request for Production

In this class certification case, the Plaintiff sought production of electronically stored information in native format.  In re NetBank, Inc.,71-72. 

The Defendants refused, claiming the Federal Rules of Civil Procedure only require production in a reasonably useable form.  Thus, the Defendants were going to produce ESI as TIFFs with searchable OCR (Note, not extracted text, but optical character recognition, which is a process applied to the TIFF images to create searchable text, opposed to using the already searchable extracted metadata from ESI processing).  In re NetBank, Inc.,71. 

The Plaintiff argued against a TIFF production of the ESI, claiming that the reduced search features would cause an “inability” to:

(1) Determine the identity of the author and editors of the documents;

(2) Determine the creation and modification dates of the documents;

(3) Determine whether the documents have attachments; and

(4) Identify, sort, search or filter documents.

In re NetBank, Inc.,71-72. 

Descending into Obstructionism? 

The Defendant (Producing Party) argued they were only required to produce ESI in a reasonably useable form, not the form specified by the Plaintiff (Requesting Party).  In re NetBank, Inc.,72. 

The Producing Party’s arguments took a turn for the bizarre, stating native file review “allows the alteration of documents produced and creates difficulties in authenticating and tracking documents produced.”  In re NetBank, Inc.,72. 

This argument ignores all the products on the market that allow for reviewing native files, defensible collection practices, MD5 Hash Values for authentication, maintaining an authenticating file of the native files, or simply checking metadata for spoliation. 

The Defendants next argued that the production needed to be in TIFF format, because native files cannot be “Bates” labeled for pagination and that “[a]nother potential drawback with native format production is that one or more of the parties may lack access to the software program or application required to read the native file.”   In re NetBank, Inc.,72.

The Defendants’ final proposal was to perform optical character recognition on 16,483 of the 17,958 documents, plus produce spreadsheets as native files.  In re NetBank, Inc., 72-73. 

There is one giant problem with this logic: Native files are already searchable.  In the processing of ESI, the searchable text can be extracted, such as metadata fields for “To,” “Subject,” “Date Sent” and the body of an email.  There is no need for a producing party to perform OCR on TIFFs if they have the original native files, because the searchable text can be extracted in processing. 

Federal Rule of Civil Procedure Rule 34

Federal Rule of Civil Procedure 34(b)(1)(C) allows a requesting party to “specify the form or forms in which electronically stored information is to be produced.” In re NetBank, Inc., 73, citing Rule 34. If there is a dispute and a motion to compel, a Court is not limited to ordering the form of production the requesting party stated to resolve the dispute.  In re NetBank, Inc., 73-74.

Don’t Argue Imaginary Problems

The Court stated that all of the “problems” the Producing Party argued were all hypothetical, not actual problems the parties were litigating.  In re NetBank, Inc.,74. 

There was no evidence that the Plaintiff were altering native files or that both parties lacked the software to review native files.  In re NetBank, Inc.,74.  Moreover, if native files were going to be trial exhibits, the Court was “confident that the precision of record citations can be appropriately dealt with…”  Id.

On the other hand, the Requesting Party was able to show the increased difficulty of reviewing native files as TIFFs. The elimination the searchable fields made “review and analysis much more difficult and expensive,” and likewise “conceals (by omission) any metadata known to the Defendants.” In re NetBank, Inc.,74.

The Court ordered the production of native files, because the Producing Party gave “no good reason why they should not produce…in native format.”  In re NetBank, Inc., 74-75.

Bow Tie Thoughts

This case is either an example of a party either not understanding electronically stored information or just engaging in gamesmanship to obstruct their opponents in discovery. 

A party can produce ESI as TIFFs (or PDF’s) and make use of processing software to extract metadata to produce searchable text.  However, parties may not exchange in “data dumps” on an opposing party to frustrate and drive up the costs of document review.

What Should be the Ordinary Course of Business: Reviewing ESI in Litigation Support Software

The Defendants in Valeo Elec. Sys. v. Cleveland Die & Mfg. Co., brought a motion to compel the Plaintiffs to organize their electronically stored information production into 28 specific categories to match the Defendants’ discovery requests.  The Defense motion was denied.  Valeo Elec. Sys. v. Cleveland Die & Mfg. Co., 2009 U.S. Dist. LEXIS 51421, 1-2 ( E.D. Mich. June 17, 2009).

The Plaintiffs’ Production 

The Plaintiffs produced over 270,000 pages of documents as they were “kept in the usual course of business.”  Valeo Elec. Sys., 2, citing Federal Rule of Civil Procedure Rule 34(b)(2)(E).

The production included “emails and other electronically stored information (“ESI”) in the order that they were found on the hard drive of each document’s custodian.”  Valeo Elec. Sys., 2.  The ESI production (rightly) maintained the parent-child relation between the email messages and the corresponding attachments.  Id.

Paper documents were scanned to searchable PDFs, along with the corresponding folder tables from where the documents were stored.  Id.

The Plaintiff’s ESI and documents were produced on 15 CD’s. Id. Most CD’s can hold nearly 700MB of data, so the total size of the production must have been approximately 10GB to 10.5.

The Plaintiffs’ Indices and Spreadsheets

The Plaintiffs produced two indices to assist the Defendants in organizing the discovery production.  Valeo Elec. Sys., 2.

The first index was a 3 page table identifying the “custodian for each Bates range of documents and identifying certain specific documents.” Valeo Elec. Sys., 3.

The second was an Excel spreadsheet that identified the ESI as follows: 

1. Document Bates range;
2. Directory and, where applicable, a file name identifying where it was stored;
3. Document name or title or “re:” line for emails containing such; and
4. Estimated date the document was created or modified.  Valeo Elec. Sys., 3.

The Court further described:

The many attachments in this spreadsheet follow immediately the document or email to which they relate, and again the Bates numbers parallel those in the three page index so the source or Valeo employee from whose computer the documents were obtained can be identified for each grouping of documents. Valeo Elec. Sys., 3.

The Defendant’s Motion to Compel

The Defendants engaged in what their associate attorneys must have thought was a Death March style review of the 15 CD’s of discovery without using any litigation support software.

The Defendants complained they had to “manually open each and every electronic file on each of the [15] CDs produced.” Valeo Elec. Sys., 4. Additionally, the Defendants had to “ope[n] and revie[w] each of the thousands of individual electronic files.” Valeo Elec. Sys., 4. They also claimed the ESI was “innocuously” named to frustrate discovery review. Valeo Elec. Sys., 4.

The Defendants wanted the Plaintiffs to organize their production to match the 28 categories from the Defendants’ discovery requests. Valeo Elec. Sys., 4-5.

Form of Production under Federal Rule of Civil Procedure Rule 34

A party’s discovery obligations pursuant to Federal Rule of Civil Procedure Rule 34(b)(2)(E)(i), require them to “produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.” Valeo Elec. Sys., 6.  To put it bluntly, the producing party can produce the ESI in the “usual course of business” or label and organize them.  Id.

The Plaintiffs produced the ESI as it was kept in the usual course of business.  This was the end of their discovery production obligations.  Valeo Elec. Sys., 6-8.

The Court described the Excel spreadsheet as the closet thing to a “magic decoder ring” the Defendants were going to get from the Plaintiffs.  Valeo Elec. Sys., 6-7.

This included relevant metadata in an index, Bates stamps by custodian and in an estimated chronological order.  Valeo Elec. Sys., 6-7.

The Court held the Plaintiffs met their discovery obligations and had no further duty to “organize” the production for the Defendants. Valeo Elec. Sys., 7.

 Best Advice for a Law Firm: Invest in a Litigation Support System

These two indices may be the nearest thing approaching a “magic decoder ring” and defense counsel may consider it of no more help than the Rosetta Stone leaving him and his associates hours of work ahead to comb through what was previously undecipherable hieroglyphics on the 15 discs. Nonetheless, all ESI documents produced are searchable in Adobe and/or other commercially available litigation search programs. Following Plaintiff’s counsel’s demonstration on June 17, it is determined that this production, including the supplemental Excel spreadsheets provided on June 17 satisfies Valeo’s Rule 34 burden and the parties’ agreement following the Rule 26(f) conference. Valeo Elec. Sys., 7

The Defense attorneys in this case would serve their clients by investing in a litigation support software for reviewing electronically stored information.  A brute force review across multiple CD’s is not cost effective in 2009.

Not using a litigation support system such as CT Summation iBlaze, LexisNexis Concordance, or hosted services such as Kcura Relativity, plus many other fine products, to review electronically stored information is extremely wasteful in attorney time and money.

In the interest of full disclosure, I am an employee of D4 LLC.  We are business partners with CT Summation, LexisNexis, Kcura, and Clearwell Systems.  I also worked for CT Summation for nearly 2.5 years and have over 5 years experience with the iBlaze product.   

Search & Analyze with Technology

Attorney review should not be engulfed in a document quagmire of “opening” and “reviewing” the “thousands of individual electronic files” in a production.

Pre-Discovery tools can be used prior to document review to cull down a production to eliminate email from news agencies, email domains and other non-relevant sources.  This technology allows attorneys to focus their search terms down to responsive ESI that can then be export for review. 

Clearwell Systems Transparent Search Function

Almost all litigation support products index electronically stored information, allow for searching of native files, organizing, tagging for issues, analysis and everything else that goes into the current practice of law. 

Search Results in Kcura Relativity

Document review also becomes more productive as extracted text from the native files populates the “Author,” “Document Date” and other objective fields.  Associates and paralegals no longer need to manually enter that information when the data can be extracted in ESI processing and used to auto-populate a review database.

CT Summation iBlaze Database

An attorney using a litigation support system to review ESI can leverage a database populated by extracted text from ESI processing to search email by Sender, focus in by date range and review email messages and their attachments. 

CT Summation iBlaze Search Feature

Modern Lawyers: iPhones, Requests for Metadata & Automated Review

In the iPhone Age technology in the law firm is a fact of life. Not using litigation support system to review electronically stored information is comparable to whining about using Lexis or Westlaw for online legal research. Or worse yet, a lawyer refusing to use a word processing program because they only know how to dictate.  It might even violate an attorney’s duty of competency to their client, due to the volume of ESI driving up costs by refusing to use the tools to make review cost effective.

Few attorneys can explain with a straight face to their client that they spent 7 hours looking for 10 emails on 15 CD’s that could have been located in seconds with a name and date search in almost any litigation support software.  

For example, I remember being a young associate digging through 40 boxes for hours to find ONE certificate of completion in a construction defect case.  That time was cut off the bill to the client.  Litigation support software eliminates that wasted time and allows lawyers to focus on their case, not an ocean of documents.

Cost Analysis of Litigation Support Software

Some may claim purchasing a litigation support software is cost prohibitive.  Consider the following:

Partner Hourly Rate: $250 to $300

Associate Attorney’s Hourly rate at an insurance defense firm: $150 to $200

Paralegal Hourly Rate at insurance defense firm: $100

Cost of one CT Summation iBlaze mobile license: approximately $2800

Cost of a CT Summation iBlaze 5 node license: approximately $8000

Valeo Elec. Sys. v. Cleveland Die & Mfg. Co., had 270,000 pages of documents to review (the opinion is not clear as to the exact nature of the data).  Assuming an associate can review one document a minute, they are reviewing 60 documents an hour and at least 480 in an 8 hour work day. 

After 16 hours slogging through loose data on CD’s (or 960 documents in two days), a firm has paid for one CT Summation license.  After 5 associates have each worked 10 hours the firm has paid for a 5 node network system. 

Associate and paralegal review outside of a litigation support software can result with review notes on Word files, yellow tablets or random Excel files.  A law firm using a review software maintains all notes and issue tags in one database that is fully searchable by everyone using the program. 

The $20,000 Motion to Compel vs Using Litigation Support Software

Bringing a motion to compel in Federal Court costs anywhere from $10,000 to $30,000, depending on the nature of the dispute (form of production or search terms), attorneys’ fees, and whether experts are needed for technical knowledge.  All the costs of that motion would buy you a 10 to 20 node network system with most desktop litigation support systems.

A party can host 10.5GB of data (15 CD’s worth of ESI) in a product like Kcura Relativity for approximately $70 a Gigabyte per month and with three attorney reviewers for $375 a month (total monthly cost estimate of $1110) for 9 to 27months, depending on the data, number of reviewers and processing costs.

Document Review in Kcura Relativity

Final Thoughts

Not using a litigation support software or service to review electronically stored information is like using a typewriter instead of a computer.  While I might be “Old School” when it comes to bow ties, law firms are best served by embracing technology to help control, organize and review discovery.

The Plumbing of a Motion to Compel

In a product defect case about brass plumbing fittings, the Defendants fought a motion to compel electronically stored information relevant to class certification, because of undue burden and cost.  They lost…in large part. In re Zurn Pex Plumbing Prods. Liab. Litig., 2009 U.S. Dist. LEXIS 47636, 1 (D. Minn. June 5, 2009).

Paper Clogging the Drain

The Court initially required the parties at the beginning of the litigation to only focus on hard copy documents out of the concern the electronically stored information would drive up the cost.  2.  The Court stated:

“ESI may prove to be relevant to the first stage of discovery, we cannot meaningfully make that prediction now, and require the parties to engage in what could be vastly more expensive, and yet utterly futile, discovery.” In re Zurn Pex Plumbing Prods. Liab. Litig., 2.

 

The Court further stated on electronically stored information:

“[S]hould the parties uncover voids in the information disclosed in hard copy form, they are . . . at liberty to press for further discovery including electronically stored information.” In re Zurn Pex Plumbing Prods. Liab. Litig., 2.

The Defendants’ Electronically Stored Information

Deposition testimony revealed the Defendants’ electronically stored information includes employee email folders and files on the network system.  Additionally, the ESI of former employees’ were archived on DVD.  There was also a separate network drive that contained un-segregated folders from over 600 employees.  In re Zurn Pex Plumbing Prods. Liab. Litig., 2-3.

Enter the Litigation Hold and Search Terms

The Defendants produced a list of individuals who were issued a litigation hold. In re Zurn Pex Plumbing Prods. Liab. Litig., 3.

The Plaintiffs in turn requested searches across the different databases with 26 key words.

The Defendants opposed the request as being “not necessary for class certification and that the request was overly broad and would be extremely costly.”  In re Zurn Pex Plumbing Prods. Liab. Litig., 3. 

The Defendants’ Arguments Going Down the Drain

The Defendants argued that 1) the first Court Order did not allow for any ESI productions and 2) producing ESI would be unduly burdensome and costly. 

The first Court order did NOT foreclose electronic discovery.  In re Zurn Pex Plumbing Prods. Liab. Litig., 4.  The Court stated the first Order allowed for electronic discovery if there were “voids in the information disclosed in hard copy form.” Id.  The Court noted email messages showed possible gaps over fittings failures and aggressive water compared to the paper documents.  Id. 

The purpose of civil discovery is to allow parties to “obtain the factual information needed to prepare a case for trial.” In re Zurn Pex Plumbing Prods. Liab. Litig., 5.  Despite the discovery being limited to class action certification, the Court stated there was a presumption in favor of production the Defendants’ electronically stored information.  In re Zurn Pex Plumbing Prods. Liab. Litig., 4-5.

Cost Counts

The Defendants were able to stop a complete rout with their cost arguments. 

The Defendants had approximately 61 gigabytes of data, which would have totaled around 27 million pages if printed.  The Defendants estimated searching all of the databases to cost around $1,150,000 and take seventeen weeks to perform.  That did not include collection and processing. In re Zurn Pex Plumbing Prods. Liab. Litig., 6-7.

The Court Order

The Court did not buy the Defendants’ burdensome arguments, especially considering a lawyer who was not an expert on searches made the claim. In re Zurn Pex Plumbing Prods. Liab. Litig., 6.

The Court did try to limit false hits from the search terms by limiting the number of search terms to 14 specific terms.  The Defendants’s searches were limited to the network drives, custodian emails and the DVDs of the former employees.  In re Zurn Pex Plumbing Prods. Liab. Litig., 6-7. 

Bow Tie Thoughts:

The parties would have been better served addressing electronically stored information at the beginning of the lawsuit, instead of delaying it for over a year.  Both sides would have been in a better position to judge class certification or settlement options if they knew the big picture.  Moreover, the Defendants had over a 600 person company.  Using email would be a fact of life.

The collection, processing, data reduction and review of 61GB would not be cheap, but $1,150,000.00 for the searches alone over 17 weeks sounds inflated. 

The perceived cost might be inflated by thinking of electronically stored information as the same as reviewing 27 million pieces of paper.  ESI can be reduced by targeted collections, pre-discovery tools to reduce the data set that are then fully searchable in a litigation support software.  With paper review, lawyers, contract attorneys and paralegals are digging through boxes of paper only searchable by the human eye. One can see where a seventeen week estimate comes from such a brut force search. 

Processing costs, which include data reduction to cull down electronically stored information, is approximately $600 to $1000 a gigabyte, depending on the vendor’s services.  Attorney review in a litigation support software is reduced by having to review less ESI, such as not reviewing any email newsletters, spam and focusing on specific date ranges.  With that said, estimating the cost to search 61GB that also did NOT include collection and processing to be over a million dollars seems high on the facts presented.

Name that Form of Production: Converting ESI to TIFF without Metadata is Not a Reasonably Useable Form

Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 U.S. Dist. LEXIS 21250 (M.D. Fla. Mar. 4, 2009) is a lengthy opinion covering Rule 34 requests, form of production issues concerning metadata, reasonably useable form of production, ethical responsibilities for candor to the Court and Opposing Parties and sanctions.  One could imagine the fact pattern on a Bar exam for issue spotting. 

The Procedural History Highlights

Defendant Lexington Ins. Company requested electronically stored information “in native form without deletion or alteration of metadata” from Plaintiff Bray & Gillespie. Bray & Gillespie, 13.  Bray & Gillespie (B&G) instead produced non-searchable TIFFs stripped of metadata.  Several attorneys from Reed Smith also withheld material information and made misrepresentations to the Court and Opposing Counsel as the motion to compel saga played out. 

Lexington Ins. Company sought sanctions against the Plaintiffs and to compel the production of ESI with metadata. 

Short Overview of ESI Collection

B&G had student interns download electronically stored information and scan paper documents.  This information was copied to a “Target Hard Drive” and given to the law firm Anderson, Kill & Olick, P.C.  Extractiva was then used to convert the ESI to static images (TIFFs) and extract metadata.  This ESI was then loaded onto an Introspect review database.  Bray & Gillespie, 7-8.

Reed Smith became the attorneys for B&G after one of the lawyers left Anderson, Kill & Olick, P.C. 

The Discovery Request & Production

After Lexington made discovery requests for electronically stored information, the Plaintiffs produced paper documents on disk and agreed to a “rolling production.”  Bray & Gillespie, 14-15.  The Defendants brought a motion to compel several months later when the Plaintiffs had not begun a “rolling production.”  Bray & Gillespie, 17.

Nearly four months after the rolling production agreement, the Plaintiff produced some ESI from the Introspect database on disk.  Bray & Gillespie, 18. 

The Defendants renewed a motion to compel shortly after the first ESI production.  Bray & Gillespie, 20.  A second production followed after a Court order.

As the Defendants began reviewing the ESI productions, they learned the ESI was in TIFF format, with no metadata or extracted text for author, data, or subject.  Bray & Gillespie, 22-23.

Producing ESI in a Reasonably Useable Form

The Court stated that producing the ESI in TIFF format without metadata eliminated the search capabilities compared to producing the ESI in native form.  As such, the ESI production was not in a reasonably useable form.  Bray & Gillespie, 23.

There were two options for making the production searchable: Option 1) OCR the TIFFs and then run ALCoder over the OCR to populate database fields for author, date, etc.  This would cause an additional cost to the Defendants, since the material was already searchable in native file form.  Option 2) Produce ESI in native form with extracted text, which makes use of the already searchable native files. 

 …and then Things Get Worse with Misrepresentation to Court on ESI Collection

You know someone is getting sanctioned when a Judge uses a lawyer’s name and the phrase “concocted a story” in an opinion. 

One of the Plaintiff lawyers represented to the Opposing Party and the Court that the Plaintiff printed all of the ESI and it was then scanned as TIFFs.  Bray & Gillespie, 25.

The Court summed up the “concocted story” as ignoring readily available or known facts pertaining to the collection and production of ESI.  Bray & Gillespie, 25-26. 

Enter the Sanctions Motion

The Defendants were not happy.  The Defendants claimed the Plaintiffs violated the Court order to produce ESI according to the form of production stated in the discovery requests.  The Defendants sought production of ESI according to the discovery requests, striking portions of the Plaintiffs’ claims and reasonable costs. Bray & Gillespie, 28.

The Court ordered B&G to produce to the Defendants the Plaintiffs’ Introspect database, minus any privileged ESI.  Bray & Gillespie, 66.  Additionally, B&G was ordered to pay all costs, including buying software or hiring someone to copy the litigation support database.  Bray & Gillespie, 67-68. 

The Plaintiffs were also required to allow a Defense computer expert direct access to the Plaintiffs’ Introspect database to confirm all non-privileged information had been produced.  Bray & Gillespie, 67-68. 

The lead attorney for the Plaintiffs was sanctioned and ordered to pay attorney’s fees and costs, which included the testifying expert and the Court reporter for transcribing the sanctions hearing. Bray & Gillespie, 71-72.   Others were sanctioned as well.

This is a very lengthy case that is fact intensive.  Every detail is not summarized in this blog.  The case is worth reviewing for the discussion on the reasonably useable form of production, discovery misconduct and the sanctions motion.

Court Orders For Hosted Review Solutions: When the Judge Wants to See the Discovery Too

Funny thing about discovery: Sometimes, the Judge needs to see the electronically stored information too. 

However, most judges will not want a lawyer to swing by in a truck to drop off 80 bankers boxes of printed email and spreadsheets at the courthouse. 

 It is also unlikely many Courts can afford purchasing litigation support software.  In these situations a web hosted review platform can be the solution. 

For those not familiar with them, a hosted litigation support solution is a database hosted online by a third party for a law firm or multiple firms.  This could be a firm with a very large case or multi-party litigation.  Each party can have its own secure log in passwords and not have access to their opponents’ work product. 

Magistrate Judge Facciola issued a discovery order that required the parties to consider using a hosted review platform.  The order set out as a “primary goal” for the parties to select a review platform with “hyper-linked to fields in a database that will permit the instantaneous retrieval from within the database of the information offered by plaintiffs in support of any factual proposition.”  El-Amin v. George Wash. Univ., 2008 U.S. Dist. LEXIS 85009 (D.D.C. Oct. 22, 2008).

 The Court set out three secondary goals:

• A. The review software had to be easily used by counsel and by the Court.
• B. The Court needed access to the review software.
• C. The review software needed to be self-contained. El-Amin v. George Wash. Univ., 2.

 The Court even went so far as draft a six column database as an example for the parties. El-Amin v. George Wash. Univ., 2.

Claim	Dr.	Date	Plaintiff’s	Defendant’s objection	Court’s ruling
No.			evidence in	and any countering
			support	evidence
123	Smith	10/02/01	Document or	Counter argument why	Claim
			testimony	evidence is insufficient;	sustained or
				tender of countering	denied, with
				evidence with	reason
				explanation

Judges are judges because they are educated problem solvers.  It is not hard to imagine more discovery orders such as El-Amin v. George Wash. Univ.  Courts will face situations requiring all parties to have access to ESI and rulings to be made on objections, privileges or admissibility.  A hosted solution can distribute the costs among the parties and allow a court an opportunity to review the discovery for expedited rulings.  This beats a moving truck full of boxes.

I Fought the Law…The Government’s Discovery Obligations in Civil Litigation

“Like any ordinary litigant, the Government must abide by the Federal Rules of Civil Procedure. It is not entitled to special consideration concerning the scope of discovery, especially when it voluntarily initiates an action.”

 Judge Scheindlin once again delivered a powerful opinion with SEC v Collins & Aikman Corporation 2009 U.S. Dist. LEXIS 3367; Fed. Sec. L. Rep. (CCH) P95,045 (S.D.N.Y., Jan. 13, 2009).  In Collins & Aikman, the SEC produced 1.7 million documents (10.6 million pages) in multiple Concordance databases with different metadata protocols.  The SEC in effect claimed they did not need to identify specific documents responsive to the discovery requests based on the work product doctrine.  The Court found this an expansion of the work product doctrine and the SEC was required to produce documents responsive to the discovery requests.

 The Court addressed whether the identification of responsive documents that the producing party organized violated the work product doctrine and how government agencies acting in their investigative capacities must respond to a Federal Rule of Civil Procedure Rule 34 request for production.  Collins & Aikman, 6.

 The Defendant propounded a Rule 34 request for the SEC to produce 54 separate categories for inspection and copying.   The SEC produced 1.7 million documents (10.6 million pages) in 36 separate Concordance databases with different metadata protocols.  The databases did not match the Defendant’s individual requests. Collins & Aikman, 5-6.

The Defendant-Requesting Party understandably had a few objections to what could be viewed as a digital 10.6 million page document dump.  These objections included:

• The SEC failed to identify documents responsive to requests for documents supporting particular factual allegations in the Complaint and instead “produced” 1.7 million potentially responsive documents, requiring the Defendant to search for the relevant needles in the haystack. Collins & Aikman, 8.
• The SEC failed to perform a reasonable search for documents relating to the document request. Instead, the SEC unilaterally limited its search to three of its divisions. Collins & Aikman, 8.

 The SEC responded to the document requests supporting factual allegations with the response, “[the SEC] does not maintain a document collection relating specifically to the subject addressed.” Collins & Aikman, 9.  The SEC produced the Concordance databases and an omnibus of investigative documents claiming the production complied with how the SEC kept the documents in the “usual course of business.”  Id.

 Judge Scheindlin’s analysis focused on the SEC’s claimed attorney work product.  The Defendant-Propounding party argued that the SEC had created 175 file folders that corresponded to the claims against him.  As such, the Defendant wanted those file folders.  The SEC countered that production of the 175 file folders would violate the work product doctrine because those folders were legal theories and other protected analysis. Collins & Aikman, 10.

 The work product doctrine is classic hornbook law that prevents a propounding party from learning the opposing party’s strategy.  The doctrine is to protect “core work product” from being disclosed to the part-opponent, which includes “mental impressions, conclusions, opinions, or legal theories.” Collins & Aikman, 14.

 The Court rejected the SEC position that anything an attorney reviewed was “core” work product.  Collins & Aikman, 17.  The Court equated this as claiming merely determining relevance during document review is all that is required to be protected by the work product doctrine.  Id.

 The Court found “undue hardship” from the production of the litigation database.  The Court stated, “It is patently inequitable to require a party to search ten million pages to find documents already identified by its adversary as supporting the allegations of a complaint.”  Collins & Aikman, 21.

 The Court found the production of the litigation support databases ineffective and that the 175 file folders were not protected by the work product doctrine.  The SEC had to respond to the Defendant’s discovery requests with the responsive documents.  Additionally, any of the 175 file folders that were created by the SEC that could be responsive to any of the Defendant’s requests had to be produced as well.  Collins & Aikman, 41-42.

 What can we learn from this?  First, producing multiple litigation support databases is probably not a good idea.  A response to a Federal Rule of Civil Procedure 34 Request must be specific and not a “document dump.”  Second, merely determining where ESI is relevant is a tough argument for protection by the work product doctrine. 

 Judge Scheindlin’s opinion is another for lawyers to add to their reading lists.  The Judge covered many issues in detail and is worthy of review.

Court Orders OCR of Scanned Paper Documents, or Don’t Go to Court Claiming OCR will Cost $200,000

“OCR, while perhaps not absolutely necessary to litigation, is a tool that greatly decreases the time and effort counsel must invest in searching and examining documents. Presumably, each party would perform the OCR process in a cost-effective manner to minimize their costs. Requiring the parties to incur this cost, when the OCR process is likely to streamline the discovery process and reduce the chance that either side will employ tactics designed to hide relevant information in a mountain of difficult-to-search documents is neither unreasonable nor burdensome.”

United States District Judge Ron Clark

Proctor & Gamble and S.C. Johnson & Son are in litigation over products with sales in the millions.  The parties were ordered to provide the Court with cost estimates to produce paper documents as TIFFs with Optical Character Recognition (OCR) so the static images would be searchable.  P&G v. S.C., 2009 U.S. Dist. LEXIS 13190 (E.D. Tex. Feb. 19, 2009).

 Thankfully, this is not a case where the parties and the Court were discussing OCR on electronically stored information like email, Excel files or other native files.  ESI is already ready searchable and does not need to be OCR-ed.  P&G v. S.C., 3.

 The Defendant, S.C. Johnson, claimed the OCR process would cost over $200,000.  Additionally, they took the position they would not use the OCR and requested cost shifting. The Plaintiff estimated the cost to be around .03 cents a page.  P&G v. S.C., 4.  Needless to say, the Court had a tough time believing that in our age of ESI such a large volume of the S.C. Johnson discovery would be in paper form needing to be OCR-ed to the tune of $200,000.  P&G v. S.C., 4.

On the left, OCR text in CT Summation iBlaze.  On the right, the static TIFF image of the same document. 

The Court applied the 7 factors from Zubulake in considering the Defendant’s claims for cost shifting.  Those 7 factors include:

(1) The extent to which the request was specifically tailored to discover relevant information;

(2) The availability of such information from other sources;

(3) The total cost of production, when compared to the amount in controversy;

(4) The total cost of production, when compared to the resources available to each party;

(5) The relative ability of each party to control costs and the incentive to do so;

(6) The importance of the issues at stake in the litigation; and

(7) The relative benefits to the parties of obtaining the information. P&G v. S.C., 4-5, citing Zubulake, 217 F.R.D. at 322

 The Court quickly found against cost-shifting for the OCR process based on the following:

There was no showing that the request was for non-relevant information nor reasonably likely to lead to the discovery of admissible information. 

No showing that the documents were obtainable from other sources. 

The parties’ respective litigation budgets were estimated to be several million dollars apiece. P&G v. S.C. 6-7.

 The Court did not order cost-shifting.  Both parties were ordered to produce paper documents as searchable TIFFs with OCR.  The Court’s recognition of utilizing OCR in discovery was thoughtful and a solid acknowledgement that technology can help reduce discovery costs.

Whose Search Term is it Anyway?

In Spieker v. Cherokee, 2008 U.S. Dist. LEXIS 88103 (D. Kan. Oct. 30, 2008), the parties became entangled in a dispute over who created search terms for a set of specific discovery requests.

 The Plaintiff had served the Defendant with specifically defined Federal Rule of Civil Procedure Rule 34 requests for email and other electronically stored information.  The Defendant claimed the suggested search terms were “not specific enough” for a discovery production.  Spieker, 9.

 The Court found that since the ESI was created, stored, and/or maintained by the Defendant, they were in the “better position to develop the most appropriate list of search terms to produce” the requested electronically stored information. Spieker, 9.

 A producing party cannot escape its burden of production by claiming that the requesting party’s suggested search terms were “not specific enough.” As such, producing parties should modify search terms if those terms need to be more specific to answer a requesting party’s specific production requests. Spieker, 9.