My friend Charlie Kaupp at Digital Strata brought the following issue to me:
There is an increasingly prevalent amount of Apple ESI found in corporate environments, especially among executives, engineering, and marketing groups.
Most review platforms do not handle large portions of Apple ESI, including:
Mac email (Entourage, Outlook 2011, Mail.app, Thunderbird)
iWork files (Pages, Numbers, Keynote)
Mac chat transcripts (iChat, Adium)
While some data (MS Office documents, PDFs, plain text, RTF, etc.) can be handled by review platforms due to its cross-platform nature, these successes can obscure larger failures in processing.
For example, a processing/review service excepted out a large file called “Entourage Database” as an unsupported file type. This database contained all the custodian’s email.
This situation should cause attorneys to pause before figuratively leaving Apple ESI on the loading dock.
Given that Apple has sold approximately 7.33 million iPads, 16.24 million iPhones, 4.134 million Macs during the first quarter of 2011 alone, simply logging all Apple ESI as “unsupported” is a formula to ignore potentially relevant electronically stored information.
Apple ESI is discoverable, can be produced in a reasonably useable form (which might require translation into static images with associated extracted text for some file types and review platforms), and therefore should be treated like any other ESI production. Categorically logging Apple ESI as “unsupported” raises a host of e-Discovery issues. Consider the following:
Duty of Competency & Federal Rule of Civil Procedure Rules 26(a), 26(g) & 34 Overview
An argument can be made that globally logging Apple data as “unsupported” can have both ethical violations under a lawyer’s duty of competency and Federal Rule of Civil Procedure Rules 26(a), 26(g) and 34.
Duty of Competence
A lawyer is ethically required to provide their clients with a duty of competency. The ABA Model Rules of Professional Conduct, codified as law in many states, require the following:
Rule 1.1: Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Initial & Supplemental Disclosures
Federal Rule of Civil Procedure Rule 26(a) requires that a party must disclose the discoverable information that the disclosing party may use to support its claims or defenses. The Rule specifically requires the following on electronically stored information must be disclosed:
A copy — or a description by category and location — of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;
Fed. R. Civ. P. 26(a)(2).
A party must also supplement or correct their initial disclosures if they learn their original disclosure is incomplete or incorrect. Federal Rule of Civil Procedure Rule 26(e)(1).
Federal Rule of Civil Procedure Rule 37(c)(1) can take a bite out of any Apple ESI by excluding the trial use of any non-disclosed ESI required by Rules 26(a) or 26(e).
Translation Into a Reasonably Useable Form
The Advisory Committee Notes to Federal Rule of Civil Procedure Rule 26 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.
Certifying Discovery is Complete & Correct
Federal Rule of Civil Procedure Rule 26(g) requires that an attorney of record in a lawsuit sign every response or objection to a discovery request, including initial disclosures under Rule 26(a) (1). Fed. R. Civ. P. 26(g)(1).
The attorney signature certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry:
(A) With respect to a disclosure, it is complete and correct as of the time it is made; and
(B) With respect to a discovery request, response, or objection, it is:
(i) Consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law;
(ii) Not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and
(iii) Neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.
Fed. R. Civ. P. 26(g)(1)
Rule 26(g) requires an attorney “to stop and think about the legitimacy of a discovery request, a response thereto, or an objection.” Anderson v. Caldwell County Sheriff’s Office, 2011 U.S. Dist. LEXIS 62263, 10-11 (W.D.N.C. June 10, 2011), citing Fed. R. Civ. P. 26(g) advisory committee’s note to the 1983 amendments.
Furthermore, Rule 26(g) provides sanctions against the attorney, party, or both if a certification violates Federal Rule of Civil Procedure Rule 26 with the difficult burden to meet substantial justification. Fed. R. Civ. P. 26(g)(3).
Upsetting The Apple Cart
It is definite that a producing party that does not disclose or produce any Apple data because the ESI was categorically marked as “unsupported” will have problems, because the attorney arguably did not act completely in either disclosing or producing responsive electronically stored information in a reasonably useable form. Software exists, such as the product line from Blackbag Technologies, for collecting and producing ESI collected from Apple computers and devices. Simply ignoring or being unaware of technology does not make ESI “unsupported.”
Furthermore, a party representing in a discovery response that Apple ESI is “unsupported” will run into problems, especially if the ESI was actually “supported” had processing technology designed for Mac data been used. Consider the following “rotten apple” scenarios:
Situation 1: A Court finds a violation of Federal Rule of Civil Procedure Rule 34 if the “unsupported” Apple ESI’s existence was disclosed in a discovery response, but not produced in a reasonably useable form.
Situation 2: A Court finds violations of Federal Rule of Civil Procedure Rules 26(a), 26(g) and 34 if the Apple ESI was not disclosed as “unsupported” files that should been both disclosed under Rule 26(a) and produced in a reasonably useable form pursuant to a discovery request.
Situation 3: Court excludes a party’s Apple ESI that is learned to be both supported and exculpatory after the close of discovery and shortly before trial, because the Apple ESI was not disclosed under Rule 26(a) and thus excluded under Rule 37(c)(1).
Search & Preservation Obligations
Simply labeling Apple ESI as “unsupported” may also invoke very dreaded passages from both Qualcomm Inc. v. Broadcom Corp 1 and The Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities LLC, et al.
Consider the following from Qualcomm 1:
Attorneys’ ethical obligations do not permit them to participate in an inadequate document search and then provide misleading and incomplete information to their opponents and false arguments to the court.
Qualcomm Inc. v. Broadcom Corp., 2008 U.S. Dist. LEXIS 911 (S.D. Cal. Jan. 7, 2008).
Consider the following from Pension Committee:
“By now, it should be abundantly clear that the duty to preserve means what it says and that a failure to preserve records – paper or electronic – and to search in the right places for those records, will inevitably result in the spoliation of evidence.”
“[D]epending on the extent of the failure to collect evidence, or the sloppiness of the review, the resulting loss or destruction of evidence is surely negligent, and, depending on the circumstances may be grossly negligent or willful.”
The Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Secs, LLC, No. 05-9016, 2010 U.S. Dist. LEXIS 4546, at *14 (S.D.N.Y. Jan. 15, 2010), as corrected, Docket # 358 (May 28, 2010) (court has the obligation to ensure that the judicial process is not abused).
Some Bad Apples
It would not take much to envision a situation where a producing party claims Apple ESI is “unsupported,” and thus cannot be searched or produced in a reasonably useable form. In the course of discovery, the requesting party learns the Apple ESI actually is reasonably useable and should have been processed, searched for responsive ESI and produced accordingly. The following motion battle would likely invoke elements of “misleading arguments and incomplete information,” with the producing party likely pointing a finger at their service provider.
The Great Danger: Missing What Helps Your Case
A sailor who does not know which course to sail will put their vessel in danger.
Simply tagging all Apple ESI as “unsupported” will have a similar effect on a lawsuit. Such a global categorization can miss a large body of relevant, responsive, or potentially exculpatory, electronically stored information.
The solution to this situation is very direct: Ask the service provider how they collect, process Apple ESI and address the issue of “unsupported” or “exotic” files.
For example, Charlie Kaupp at Digital Strata suggests the following:
Apple ESI Collection needs have been addressed with tools such as Macquisition from Black Bag, which is a bootable forensic image creation tool akin to Encase or FTK.
Processing needs have been addressed with services such as Digital Strata’s Review-Ready Conversion service. These services will allow Mac data to be converted to file types that can be handled by review platforms while maintaining chain of custody and all metadata with a load file.
Apple ESI issues should be discussed at the meet and confer with the opposing party, because if one party has a significant amount of Apple ESI, it is a high likelihood the other side also has Apple ESI. Moreover, attorneys who are knowledgeable of the available technology to collect and process Apple ESI, have no reason to ignore Mac data any more.
Disclosure: The team at Digital Strata are personal friends and I have referred clients to them in the past.