Production Madness: The Covad Story Continues with New ESI Pitfalls

Understandably, taking an electronic document such as a spreadsheet, printing it, cutting it up, and telling one’s opponent to paste it back together again, when the electronic document can be produced with a keystroke is madness in the world in which we live.

Magistrate Judge John M. Facciola, Covad Communs. Co. v. Revonet, Inc., 2009 U.S. Dist. LEXIS 75325 (D.D.C. Aug. 25, 2009).

Magistrate Judge John M Facciola has addressed ESI issues before in Covad Communs. Co. v. Revonet, Inc. (see, Playing with Fire: Producing ESI as Paper, Discovery Production Workflow: Lessons from Magistrate Judges Facciola & Grimm and The Return of Covad Communications: Forensic Imaging of Databases & Email Servers). On August 25, the Court issued a new opinion and I have a feeling another will be published before Christmas. 

Procedural History

The Covad opinion is a “direct sequel” to the “Christmas Eve” opinion of last year.  The second opinion is from May 27, 2009, which has must read analysis on forensic imaging of hard drives and email servers. However, no one is calling the second opinion the “Sink the Bismark” Order, in recognition of the events of May 27, 1941. 

In the new opinion (which history fans could call the Voyage 2 Opinion), the Plaintiff brought a motion to compel compliance with the “Christmas Eve” opinion due to the “adequacy” of the Defendants’ responses and email searches.  Covad, 1-2.

The Case at Bar: Format and Completeness

There are two intertwined issues of Covad 3: Format and Completeness. 

“Format” addressed the December 24, 2008 Order regarding:

(1) The 35,000 pages the Defendant produced in hard copy prior to the Motion to Compel; Covad, 2-3.

(2) The 2,832 pages of documents originally produced in hard copy while the Motion to Compel was pending; Covad, 3.

(3) Any other information that have been produced since the December 24, 2008 Order or will be produced in the future. Covad, 3.

“Completeness” addressed whether the Defendants had produced anything pursuant to the discovery requests.  Covad, 3.  Plaintiff Covad advanced the following arguments in support of their motion:

(1) Only a subset of all the documents that should have been produced in response to the original 44 Requests to Produce Documents have been produced; Covad, 3.

(2) The e-mail search, no matter what it produced, was not designed to find the relevant e-mails because of the narrow and under-inclusive search terms that were used; Covad, 3.

(3) The litigation hold and search term documents have never been produced in electronic format, Covad, 3.

(4) Defendant Revonet has not produced many of the documents identified in its own initial disclosures. Covad, 3.

Many of these issues were still pending from the ordered forensic search in Covad 2 at the time of the Covad 3 opinion was issued.  (See, The Return of Covad Communications: Forensic Imaging of Databases & Email Servers).  Thus, the Court did not address the “completeness” issues, because the forensic search may make some of the issues moot.  Covad, 3-4. 

Judge Facciola set the stage for possibly limiting any more productions of relevant electronically stored information under the Federal Rule of Civil Procedure Rule 26(b)(2)(C) “balancing factors” that “…include….(i) whether the discovery is “unreasonably cumulative or duplicative,” and (ii) whether the party seeking discovery “has had ample opportunity to obtain the information by discovery in the action.” Covad, 4.

The Court acknowledged that discovery was ongoing and procedurally the Defendants could not respond to some of the issues in the Plaintiff’s Reply brief.  However, the Court wanted answers to these four issues:

1. Is it Revonet’s position that its production to date satisfies all the demands made of it by Covad’s Request for Production of Documents? Covad, 5.

2. Will Revonet produce what Covad calls the litigation hold and search term documents in native format? Covad, 5.

3. Does Revonet consider itself bound, by either the Requests for Production or by some agreement with counsel to produce the litigation hold and search term documents? If not, why not? Covad, 5.

4. Has Revonet produced or will it produce the items that Covad argues were identified in Revonet’s initial disclosures? Covad, 5-6.

The Court ordered a neutral statement of facts to answer the above issues.  Moreover, the Court would deem these answers certified under Federal Rule of Civil Procedure Rule 26(g)(1).  Covad, 5-6.  The Court alluded in Covad 2 that it would potentially take violating Rule 26(g)(1)(A) to compel a forensic search of the Defendant’s email servers.  Covad Communs. Co. v. Revonet, Inc., 2009 U.S. Dist. LEXIS 47841, 22 (D.D.C. May 27, 2009).

When Production Sets Don’t Match

The Plaintiff claimed the Defendant did not produce all of the emails in native file format, thus resulting in a discrepancy between the paper and native file productions.  Covad, 7. 

The Defendant explained that the review platform they used for the first paper production was only able to export email in an HTML format.  Covad, 7.  After the first Court order, the Defendants re-produced email messages with a PST using a different production method.  Covad, 7. 

As one can imagine, there was a difference between the first production in paper and the second in native file format.  The Defendants claimed it was too burdensome to cross-reference the two productions to define the size and scope of the discrepancy.  Covad, 7.

This is an avoidable situation.  While I am not sure exactly what was done in this case, ESI should be collected in a documented methodology and processed in a defensible manner.  This should give the party MD5 Hash Values and an index of the processed ESI.  All litigation support review software creates a document index and almost all a production log.  This should enable a party to track what has and has not been produced in discovery.  Instead, the Defendant has to cross-reference a HTML system to a PST production.  This situation could have been avoided with treating ESI as ESI and not producing paper in the first place. 

As Judge Facciola stated:

More to the point, I have already resolved the issue of whether, on balance, Revonet should be required to produce the 35,000 pages in native format, and I have not seen any new information that causes me to revisit my conclusion on that point. Obviously, I contemplated that the e-mails be produced in native format; I was not granting a license to produce fewer e-mails in native format than were produced in hard copy. Hence, Revonet is going to have to produce the missing e-mails. Covad, 8-9.

A Bad Form of Production Plan

The Defendants also produced “useless” paper printouts of spreadsheets that “run horizontally across several sheets of paper, resulting in a sea of seemingly random numbers and data, with no effective labels, column headings, or other identifying information.” Covad, 10.  The Plaintiff’s attorney was told he “could paste these hundreds of pages together,” to make the “paper-ized” spreadsheets useable.  Covad, 10.

The Parties were attempting to resolve this form of production debacle outside of court at the time of the opinion.  Judge Facciola reminded the Parties that “…documents that were originally created in an electronic format (which must be the vast majority, if not all, of them) must be produced in an electronic format that is ‘the form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.’” Covad, 12, Fed. R. Civ. P. 34 (b)(2)(E)(ii).

It is an understatement to say Courts frown on parties producing ESI in a way that degrades its searchability.  Covad, 12-13.  As Judge Facciola stated: 

Understandably, taking an electronic document such as a spreadsheet, printing it, cutting it up, and telling one’s opponent to paste it back together again, when the electronic document can be produced with a keystroke is madness in the world in which we live. Covad, 14.

The clock is ticking for the Defendants to respond to the Court’s questions.  I am waiting for what happens next in Covad 4.  Depending on the timing of the pleadings and the Defendants’ actions, Judge Facciola might be issuing an “Antietam” or “Trafalgar” order this fall.

Get Out the Check Book for Translating ESI into a Reasonably Usable Form in California

California Code of Civil Procedure 2031.280(e) states, in relevant part:

If necessary, the responding party at the reasonable expense of the demanding party shall, through detection devices, translate any data compilations included in the demand into reasonably usable form.

California Code of Civil Procedure 2031.280(e) might give anyone used to litigation in Federal Court pause.  The Federal Rules of Civil Procedure have no mention of “at the reasonable expense of the demanding party.” 

Reasonably Usable Form

The Advisory Committee Notes to Federal Rule of Civil Procedure Rule 26, and arguably CCP 2031.280(e), acknowledge that some electronically stored information as it is ordinarily maintained is not in a reasonably usable form, and thus requires translation into a form the requesting party can use.  See, Michael R. Arkfeld, Arkfeld on Electronic Discovery and Evidence, §7.7(F), 7-207-208.

Federal Rule of Civil Procedure Rule 34(a)(1)(A) defines electronically stored information as “data compilations–stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.”

Magistrate Judge John Facciola explained Federal Rule of Civil Procedure Rule 34(a)(1)(A) in D’Onofrio v. Sfx Sports Group, Inc., 247 F.R.D. 43, 47 (D.D.C. 2008):

In other words, electronic data is subject to discovery if it is stored in a directly obtainable medium. If, however, it is not stored in a directly obtainable medium, a request may be made of the responding party to translate the electronic data into a “reasonably usable form.” Because the step of translating this type of electronic data adds an extra burden on the responding party, the request may only seek for it to be done “if [the translation is] necessary.” It is not the case that this clause requires the responding party to produce data in its original form unless “necessary” to do otherwise.

Traditional Rule for Discovery Costs

The traditional rule is that parties pay for their own discovery productions.  There are of course exceptions to this general rule.  Federal Rule of Civil Procedure Rule 26(b)(2)(C) gives a Federal Court the inherent authority to shift discovery costs to the requesting party or proportionally between the parties.   Additionally, Federal litigants may seek a protective order under Federal Rule of Civil Procedure Rule 26(c) if there is undue burden or cost.  See, Arkfeld, §7.4(G), 7-77.

California & Cost Shifting

California provides a different, some might say clearer, others might say horrifying, solution when it comes to translating data compilations into a reasonably usable form and cost shifting:  The law requires mandatory cost shifting.  This requirement existed in the code prior to the Electronic Discovery Act and the major case addressing the issue is Toshiba America Electronics Components v. Superior Court, 124 Cal. App. 4th 762, 764 (Cal. App. 6th Dist. 2004).

In Toshiba, the parties fought over who would pay the cost to restore 800 back-up tapes spanning 8 years into a “reasonably useable form.”  The estimated cost was between $1.5 to $1.9 million. Toshiba, 765-766. 

The Requesting Party argued cost-shifting would be unfair, citing to Federal law and ignoring then California Code of Civil Procedure section 2031(g)(1).  Toshiba, 766. 

The lower court ordered the Producing Party to “produce all nonprivileged e-mails from its backup tapes within 60 days.” Toshiba, 767.

The Court of Appeals in Toshiba found that then California Code of Civil Procedure section 2031(g)(1) had mandatory language requiring cost-shifting.  As the Court of Appeals explained:

By enacting the cost-shifting clause of section 2031(g)(1) our Legislature has identified the expense of translating data compilations into usable form as one that, in the public’s interest, should be placed upon the demanding party. That is, section 2031(g)(1) is a legislatively determined exception to the general rule that the responding party should bear the cost of responding to discovery. When there is no dispute about the application of the statute, the statute automatically shifts the expense of translating a data compilation into usable form to the demanding party. The trial court’s decision, which was based upon the general rule that the responding party bears that expense, was based upon a faulty legal analysis and was, therefore, an abuse of discretion. Toshiba, 772.

California has continued the requirement for mandatory cost shifting for data compilations into a reasonably usable form with California Code of Civil Procedure section 2031.280(e).  While the provision does not have a built in mechanism to challenge the cost-shifting, a party can seek a protective order if there is undue expense or cost for translating the data into a reasonably usable form. Toshiba, 773.

So, if you are reqesting ESI that requires translation into a reasonably usable form, get the check book ready.

California Rules on the Form of Production

Discussing the California Electronic Discovery Act provisions on stating the form of production in a discovery demand. 

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.

Rock Opera Discovery of Archived ESI

In re In re Operadora DB Mex., 2009 U.S. Dist. LEXIS 68078 (M.D. Fla. May 28, 2009), is the story of an international legal dispute, arbitration and the Hard Rock Café.  While all of that makes for an exciting feature act, we will rock out to the electronic discovery issues. 

The Hard Rock Café was requested to produce electronically stored information and documents over 15 years, which included two changes in ownership and several document retention policies.  The Hard Rock argued that such a request was unduly burdensome and costly.  In re In re Operadora DB Mex., 14. 

Not withstanding the electronically stored information, the Hard Rock Café explained their “undue burden” in that it would take 10 to 20 days to review for responsive documents.  Moreover, the existing staff would have to perform the search, as there was no regular staff to search for responsive documents.  In re In re Operadora DB Mex., 14-15. 

Unduly Burdensome & Costly ESI

The Court found the Hard Rock Café made a preliminary showing that the archived ESI could be “costly and unduly burdensome.”  In re In re Operadora DB Mex., 31.  In separate litigation, the Hard Rock Café produced archived ESI and that the “opposing party incurred substantial costs in connection with searching same for relevant information.” In re In re Operadora DB Mex., 31-32. 

Failure to State the Form of Production

The requesting and producing parties both failed to state a form of production.  In re In re Operadora DB Mex., 32.  Pursuant to Federal Rule of Civil Procedure Rule 34, a responding party may specify the form of production.  ” Fed.R.Civ.P. 34(b)(1)(C).  If no form is specified, the producing party is required to state the form they intend to use.  Fed.R.Civ.P. 34(b)(2)(D).

Production of ESI Produced in Other Litigation

The Court’s options in resolving the discovery dispute for the archived ESI and determining the form of production included, “the implementation of a detailed and appropriately tailored discovery plan, ordering deposition(s) of personnel with the most knowledge of [Hard Rock Café]’s electronic data storage, retrieval, and search capabilities, and/or shifting the costs of discovery to the requesting party.”  In re In re Operadora DB Mex., 32. 

The Court ordered the Hard Rock Café to produce the ESI that it had “readily available in electronic format” from the separate litigation, solving part of the discovery dispute.  In re In re Operadora DB Mex., 33.

Good Faith Meet & Confer for Archived ESI

The Court stated it was premature to determine a form of production for the archived ESI.  The parties were ordered to meet and confer on a form of production.  In re In re Operadora DB Mex., 33.

The meet and conference needed to address the following:

• A good faith disclosure of the archived data by [Hard Rock Café], including the medium on which the archived data is stored, the volume of the archived data, the practicability of searching the archived data for responsive data, the likely costs associated therein, and any other pertinent information available to [Hard Rock Café] regarding the most practical means and methods of facilitating a prompt and cost efficient search of the archived data files for information responsive to the subpoena;
• Each party shall have IT personnel or individual(s) with expertise or specialized knowledge in the mechanics and likely costs of such data extraction at the good faith conference;
• After [Hard Rock Café]’s disclosure, the parties shall jointly evaluate the costs associated with discovery of responsive archival data versus the need for said data at the Arbitration; and
• The parties shall make a good faith effort to agree upon a resolution of the archived data discovery dispute without the Court’s involvement. 

 In re In re Operadora DB Mex.,33-34. 

Bow Tie Thoughts

I am a proponent that Federal Rule of Civil 26(b)(2)(B)’s definition of “not reasonably accessible” does not automatically make “unduly burdensome” equal costly.  In this case, part of the undue burdensome analysis included the lack of staff to conduct a search and the subsequently man hours lost in a review.  While this would ultimately have a dollar sign attached to it (because time equals money), showing up to court with an estimate from a vendor for preservation, collection or processing is not the only way to show ESI is not reasonably accessible.

It is also worth noting that the parties were required to have at the meet and confer “IT personnel or individual(s) with expertise or specialized knowledge in the mechanics and likely costs of such data extraction.”  In re In re Operadora DB Mex.,33-34.  This was not meant to sound as a holiday gift card to an e-Discovery service provider, but an acknowledgment that the electronically stored information can require specialized knowledge to resolve ESI issues.

Swimming in the Deep End: Treading Water in e-Discovery Cases

This motion centers on electronic discovery. The proper handling of electronic discovery is a new and developing area of law practice. The Federal Rules first addressed electronic discovery in 2006 and the Local Rules of this court have yet to provide any guidance on electronic discovery. Therefore, the court appreciates that it treads in what still are largely unknown waters.  Dahl v. Bain Capital Ptnrs, LLC, 2009 U.S. Dist. LEXIS 52551 (D. Mass. June 22, 2009)

Not every judge has the experiences of Magistrate Judges Facciola, Waxse, Grimm or Peck when it comes to electronically stored information.  Some District Court judges are just now issuing their first ESI opinions, over 2.5 years since the December 2006 Amendments. And for those who have not followed the news, California state judges will now be facing these issues since California enacted its own Civil Discovery Act addressing e-Discovery.

The District Court Judge swam into the deep end of the pool in Dahl v. Bain Capital Ptnrs, LLC to address four issues regarding electronically stored information:

(1) Costs;

(2) Metadata;

(3) Excel spreadsheets; and

(4) Privilege logs.

Dahl, 4.

Cost Shifting

The general rule in discovery is the producing party pays their own costs, unless there is a showing that 1) ESI is not reasonably accessible and 2) undue burden or cost. Dahl, 4-5.

The Producing Party failed to show any reason to justify cost shifting.  There was no showing the ESI was not reasonably accessible or any showing of undue burden or costs.  Dahl, 4-5.  As such, the Court did not order costing shifting in this case. 

Form of Production: Paper & OCR

The Court did order something different with the paper documents that might cause commentators to scratch their heads: The producing party had to only produce the paper discovery in the form the paper was ordinarily maintained; any “modification” had to be paid for by the requesting party.  Dahl, 6-7.

The paper documents were to be produced as they were ordinarily maintained.  Dahl, 6.  Therefore, the Requesting party had to pay for “(1) for scanning and optical character recognition (“OCR”) for paper documents; and (2) for OCR for those electronic documents without text search capabilities.”  Dahl, 6. 

Narrowly Tailored Metadata Production

The Requesting party sought “all metadata” associated with the electronically stored information.  Dahl, 7.  The Producing Party wanted to only produce 12 metadata fields.  Id.  The Court sided with the Producing Party.

As a practical matter, “all metadata” could include 144 fields of information for certain types of ESI.  Searching could become complex and ugly.  Depending on which 12 fields the Producing Party was willing to produce, the Requesting Party might get everything they want. 

 

For more on the different types of metadata, see Production of Metadata and the Importance of the Meet & Confer Process, which includes a discussion on system metadata, substantive metadata and embedded metadata.

The Court explained its justification on that “[metadata] does not lead to admissible evidence and that it can waste parties time and money.”  Dahl, 7, citing, Wyeth v. Impax Labs., Inc., 248 F.R.D. 169, 171 (D. Del. 2006).  The Court also explained Rule 34 “militates against the broad, open disclosure of metadata…” Dahl, 8.

The Court held the following:

Rather than a sweeping request for metadata, the Shareholders should tailor their requests to specific word documents, specific emails or specific sets of email, an arrangement that, according to their memorandum, suits the PE Firms. This more focused approach will, the court hopes, reduce the parties’ costs and work. Furthermore, it reflects the general uneasiness that courts hold over metadata’s contribution in assuring prudent and efficient litigation. Dahl, 8.

Form of Production: Spreadsheets

The Court held that Excel spreadsheets were to be produced in native file format.  Dahl, 8-9.

The Court explained that Federal Rule of Civil Procedure Rule 34 requires “documents” [I presume the Court meant ESI] to be produced “as they are kept in the usual course of business.” Dahl, 9 citing Fed. R. Civ. P. 34(b)(2)(E)(i).

Since the Producing Party maintained Excel spreadsheets in native file format that was the form the spreadsheets were to be produced in.  Dahl, 9.

A Footnote on Footnote 1

The Court in Footnote 1 stated that it held a different view of metadata in Excel files verse email or Word documents.  The Court stated, “Maintaining spreadsheets in their native format is necessary to assure the integral elements of a spreadsheet remain undisturbed.”  Dahl, 9, fn 1.

Privilege Log

The Court ordered the Producing Party to produce privilege logs in native file format.  Dahl, 9-10.   The Court did not explain its reasoning, other then I can guess this was for the privilege log to be searchable. 

Bow Tie Lessons

I have a different view from the Court’s on the form of production analysis that producing paper as scanned images with OCR somehow “modified” the documents. 

 

 

I believe the Court kept paper as paper based on Federal Rule of Civil Procedure Rule 34(b)(2)(E)(i), which states:

A party must 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;

Since these were “documents,” apparently the Court saw scanning and OCR-ing them as “modifying” the documents.

If the Court is concerned about “modifying” paper into a digital form, I challenge any cost misconceptions.  Paper documents would need to be scanned and then printed.  There is a cost with printing paper, cost to storing boxes, potentially printing working copies or a cost to scan it all over again to digital instead of more paper.  (See, Court Orders OCR of Scanned Paper Documents, or Don’t Go to Court Claiming OCR will Cost $200,000 with a different view then the present Court’s). 

Please put your seatbelt on for this shocker: It is cheaper to scan and OCR paper documents then it is to scan and print as paper.  Scanning cost for both projects is the same.  Printing costs are approximately TWICE the OCR costs.  While it might only be a .03 difference a page, as that is multiplied out across a production, a party will feel the cost acceleration. 

I think the Court’s view on “modifying” is contrary to Federal Rule of Civil Procedure Rule 1, which states, “[the FRCP] should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”  Telling a party that paper must be copied as paper and then scanned again to make the paper in a litigation support system arguably frustrates the goal of Rule 1.

As for ESI, a requesting party is not limited to the form of production being in the “ordinary course of business” with electronically stored information, but can specify the form of production in their request pursuant to Federal Rule of Civil Procedure Rule 34(b)(1)(C). 

The Producing Party can produce or object to a Requesting Party’s form of production, which then is followed by a meet and confer if the parties cannot resolve their dispute on the form of production.  Federal Rule of Civil Rule 34(b)(2)(D) specifically states:

The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form–or if no form was specified in the request–the party must state the form or forms it intends to use.

Federal Rule of Civil Procedure Rule 34(b)(2)(E)(i) does not “trump” a requesting party’s right to specify a form of production 34(b)(1)(C).  Rule 34(b)(2)(E)(i) arguably pertains to how a production is organized, such as file names used in the ordinary course of business or with a control list that states which documents relate to which requests. 

The form of production is NOT limited to how the ESI is “ordinarily maintained.”  Federal Rule of Civil Procedure Rule 34(b)(2)(E)(ii) states (emphasis added):

If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms;

Rule 34(b)(2)(E)(ii) begins with the proviso, “If the request does not specify a form for producing…”  which then brings up the issue of “ordinarily maintained” OR “a reasonably useable form or forms” if there is a “form” void from a requesting party not stating a form of production.      

There is no shortage of case law where the issue is a “reasonably useable form,” which includes TIFF and PDF productions.  For example, if the “ordinary course of business” would require specialized software to review building plans, a Court’s analysis would likely focus on the production being in a reasonably useable form.

If a party wants ESI as TIFFS with associated extracted text there is plenty of case law supporting that practice.  (See, Check Please: Challenging a PDF Form of Production, Procrastination and Objecting to the Form of Production Don’t Mix, Name that Form of Production: Converting ESI to TIFF without Metadata is Not a Reasonably Useable Form, plus others on different form of production cases.) 

For those not convinced that it is more cost effective to manage scanned paper with OCR in a litigation support system over a paper production, try this little test.  Get out a stop watch.  Print everything from the P. Franc v. K. Morris demo case in CT Summation iBlaze.  Have one person with CT Summation iBlaze with the P. Franc v. K. Morris case open.  Here are the Requests for Production you must answer:           

            1.  Any and all documents PERTAINING TO the gabion wall.

            2.   Any and all documents PERTAINING TO “energy dissipater.” 

Time  how long it takes to find the responsive documents in the database verse the paper hard copies, and ask yourself which process better furthers Federal Rule of Civil Procedure Rule 1.

Motion to Compel Camera Phone Photo

Just as the Def Leppard Song Goes: All I got is a photograph — and it is not enough. (from the classic Photograph)

The Defendants requested a photo from a Plaintiff that was taken on his cell phone.  The Plaintiffs in turn produced the photo.

There was one little problem with the production for the Defendants: They thought the photo was of poor quality. Green v. Fluor Corp., 2009 U.S. Dist. LEXIS 49335 (M.D. La. June 11, 2009). 

The Defendants brought a motion to compel production of the Plaintiff’s camera phone and email account, in an apparent attempt to see a “better quality” photo.

Problems with the Motion to Compel:  The Defendants never made a Rule 34 request to inspect or produce the Plaintiff’s camera phone or his email account. Moreover, the Defendants did not state a form of production for the photo pursuant to Federal Rule of Civil Procedure Rule 34(b)(1)(C).  Green, 1-2.

The Plaintiff had the right pursuant Federal Rule of Civil Procedure Rule 34(b)(2)(E) to produce the photograph in either the “form it is ordinarily maintained” or in a “reasonably usable form.” Green, 2.

The Defendants did not challenge the authenticity of the photo.  Additionally, the Defendants did not claim that viewing the photo on the Plaintiff’s cell phone or his email would give them anything new or useful. Green, 1-3. 

The Plaintiff did not have to re-produce the photo.  Federal Rule of Civil Procedure 34(b)(2(E)(iii) only requires a party to produce electronically stored information in only one form.  As such, the Defendants did not have a right under the Federal Rules of Civil Procedure to view the photo on the Plaintiff’s email or cell phone. Green, 3.

The lesson learned: If you want a cell phone photo, be very specific in your request for production and state the form of production.  A motion to compel cannot correct a failure to state the form of production in your original request.

Follow the Court Order: If You are Ordered to Produce Searchable PDF’s, Don’t Produce TIFFs without Searchable Text

Gamesmanship is the harbinger of bad lawyer reputations.  Not obeying Court orders can be the death warrant on how the judge will view you every time you appear in her courtroom.  One can imagine how things will go for a party when this is the opening line of an opinion:

This is the second needless discovery motion in this case – needless because plaintiff’s counsel simply refuses to follow the letter of court orders, and in this case, not even the spirit. Ajaxo Inc. v. Bank of Am. Tech. & Operations, Inc., 2008 U.S. Dist. LEXIS 97602, 1 (E.D. Cal. Dec. 1, 2008).

Ignoring the Form of Production in a Court Order

The Court ordered ESI be produced in a searchable form and Plaintiffs agreed to searchable PDF’s. 

The Plaintiffs instead produced 119 static images (TIFFs) WITHOUT extracted text for searching, any pagination, or a load file for a litigation support review system.  Ajaxo Inc., 3.

The Plaintiff’s expert material was produced at first late in non-searchable format on 5 CD’s. Ajaxo Inc., 3.  A searchable production was made months later after the motion to compel was filed.  Id.

Preparing for an expert deposition with 5 CD’s worth of non-searchable material does not sound like a good time.

The Court found the Defendants were prejudiced because they could not adequately prepare for the expert’s deposition with the large volume of documents. 

Prejudice was encountered with respect to the Hampton CDs in that the Bank could not adequately prepare for Hampton’s deposition given the volume of documents. Ajaxo Inc., 3. 

The Plaintiffs were ordered to produce both productions in a searchable format and instead disregarded the Court Order.  This did not go unnoticed by the Judge.  Ajaxo Inc., 3. 

Things Judge’s Don’t Like: Excuses

The Court was not thrilled with the Plaintiffs claiming the Federal Rules of Civil Procedure do not require ESI productions in searchable format. 

The Court bluntly stated, “[Plaintiffs’] belief that the Federal Rules may not require production in searchable format is not only wrong, but again ignores the terms of the specific order.” Ajaxo Inc., 4.

Federal Rule of Civil Procedure Rule 34 Review

The Court included the following summary on form of production protocols from the Federal Rules of Civil Procedure, the Advisory Committee notes and case law:

Fed. R. Civ. P. 34(b) permits the requesting party to specify the format of electronically produced documents, subject to objection by the producing party with a statement in the Rule 34 response specifying the form in which the documents will be produced. This objection may be sustained or overruled by a court. In the absence of a court order, and if no specific request is made, the producing party may produce the documents in native format, or in a “reasonably usable” form. Ajaxo Inc., 4, citing Rule 34(b)(2)(E).

A responding party may not change the form of production to make what was ordinarily searchable, non-searchable. Rule 34 Advisory Committee Notes 2006 amendment. Courts may order electronic documents to be produced in searchable format. Ajaxo Inc., 4-5, citing, In re Seroquel Product Liability Litigation, 244 F.R.D. 650, 654-55 (M/D. Fla. 2007); Hagenbuch v. 3B6 Sistemi etc., 2006 U.S. Dist. LEXIS 10838, 2006 WL 665005 (N.D. Ill. 2006)

Enter the Sanctions Motion

The Defendants sought the following sanctions pursuant to the Court’s inherent powers and Federal Rule of Civil Procedure Rule 37(b) (2):

(1) Order it established that Ajaxo and KCM are alter egos;

(2) Order plaintiffs precluded from relying on Hampton’s expert report to support their claims for damages;

(3) Monetary sanctions in the amount of $ 12, 592.50 for fees incurred to date. Ajaxo Inc., 5.

Perspective from the Bench: Not Happy, but Not Fatal to the Plaintiffs’ Case

The Court directly stated:

[Plaintiffs’] counsel may not pick and choose when to comply with a court order depending on counsel’s unilaterally determined excuses or justifications not to comply with the order. The order is either obeyed or appealed. Nor should courts issue orders which they are unwilling to enforce. There is importance per se in not allowing a party to ignore orders – the litigation process would otherwise descend into chaos. Thus, sanctions must be imposed here. Ajaxo Inc., 7.

The Court’s sanctions analysis focused on the Plaintiff counsel’s willful disobedience of the Court order and the prejudice the Defendants incurred. Ajaxo Inc., 7.

The Court was not ready to decimate the Plaintiffs’ case by striking their expert because of the attorney’s conduct.  The Court “barely” believed that Plaintiffs’ counsel acted in ignorance of the law and not in “contumacious disrespect” of it.  Ajaxo Inc., 8. 

The Court ordered the Plaintiffs to re-produce their expert for deposition, because the Defendants did not have adequate time to prepare for the expert’s original deposition.  Ajaxo Inc., 9.

The Court further ordered the costs of the deposition and motion.  Ajaxo Inc., 9-10.

Final Thoughts

Attorneys need to understand the procedures for requesting ESI, form of production requirements and complying with Court orders for electronic discovery to best serve their clients. The sheer volume of electronically stored information requires all lawyers to have a basic understanding of contemporary discovery.

Procrastination and Objecting to the Form of Production Don’t Mix

It is beyond cavil that this entire problem could have been avoided had there been an explicit agreement between the parties as to production, but as that ship has sailed, it is without question unduly burdensome to a party months after production to require that party to reconstitute their entire production to appease a late objection.

United States Magistrate Judge Ester Salas, Ford Motor Co. v. Edgewood Props., 2009 U.S. Dist. LEXIS 42001, 21 (D.N.J. May 18, 2009)

Ford Motor Company and Edgewood were locked in a series of disputes.  One portion of the dispute was over a discovery request for native files with metadata and the Responding Party’s production.

Edgewood requested electronically stored information in native file format with metadata.  Ford instead produced the ESI as static images (TIFFS) with searchable text.  Ford, 13-14.

Federal Rule of Civil Procedure Rule 34 allows for a requesting to state the form of production and request metadata.  Pursuant to Fed. R. Civ. P. 34(b)(2)(D),  “If the responding party objects . . . the responding party must state “the form or forms it intends to use for its production of ESI.” Ford, 15.  The requesting party can object to a counter form of production, which should be followed by a meet and confer over the dueling forms of production.  Fed. R. Civ. P. 34.

That is not what happened here…at least not in a reasonable period of time.

The Discovery Production

There were three productions in the Producing Party’s counter-form of production over an 8 month period.  Ford, 19.

The Requesting Party waited 8 months to object to the static production with searchable text.  Id.

The Court stated the Requesting Party’s delay was “patently unreasonable.”  Id. 

While not setting out a rigid rule on timelines to object to a form of production(which would probably result in case law chaos given the nature of ESI), the Court held it was unreasonable to wait 8 months to object when the production was nearly finished.  Ford, 20. 

Reasonableness is king when it comes to discovery and waiting 8 months was not reasonable. 

The Court further stated:

One may reasonably expect that if document production is proceeding on a rolling basis where the temporal gap in production is almost half a year apart, a receiving party will have reviewed the first production for adequacy and compliance issues for a reason as obvious as to ensure that the next production of documents will be in conformity with the first production or need to be altered. It was incumbent on Edgewood to review the adequacy of the first production so as to preserve any objections.  Ford, 19-20. 

The Court held the Requesting Party’s objection was untimely and requiring the Producing Party to produce ESI as native files to be unduly burdensome.  Ford, 21.

What the Party Should Have Done

The Requesting Party was required under Fed. R. Civ. P. 34 to object to the Producing Party’s proposed form of production.  If they were unable to reach an agreement on how to produce the ESI, the Requesting Party was required “to alert the Court within a reasonable period of time.”  Ford, 20.

Now, what is reasonable?  That will turn on the nature of the case, how involved the parties are in the meet and confer process and other factors showing reasonableness.

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.