Piercing the Work Product Doctrine: Gamesmanship with Locked PDF’s

The Plaintiffs in Mack v. HH Gregg, Inc. sued the Defendants for breach of contract over the alleged failed installation of dryers.

The parties agreed the Defendants would produce a “summary of its dryer installation invoices that would include the state of the sale, date of purchase, amount paid for delivery and installation, and the make and model of dryer purchased.”  Mack v. HH Gregg, Inc., 2010 U.S. Dist. LEXIS 8281 (S.D. Ind. Jan. 29, 2010).

The Defendants in turned produced an 11,757 page “locked” PDF summary for the Plaintiffs. Mack, at *2.

The Plaintiffs were understandably upset (hence the motion to compel) about getting a giant PDF that they could not edit or manage without re-typing the entire file. 

The Plaintiffs wanted the ability to “re-group” the data.  Mack, at *3.  In the litigation support profession, this would be the re-unitization of the scanned paper or ESI converted to static images, either based on logically grouping documents or simply at document breaks, in a litigation support review platform.  For example, if you had a medical file, the reviewing attorney would have the doctor’s handwritten notes, x-rays and the pathology report as separate documents, instead of viewing the file as one giant document. 

The Plaintiffs requested the Defendants produce the PDF in its original file format.  The Defendants refused, claiming the following objections:

(1) The PDF was protected from discovery by the work product doctrine;

(2) The Defendant was not required because the parties never agreed to the format in which the information would be produced, and

(3) Production would be unduly burdensome. 

            Mack, at *3.

A Case Study in Watching the Court Sink Your Arguments

The “Free Ride”

The Defendant’s argued the Plaintiffs would get a “free ride” on the Defendants’ work if the Plaintiffs could have the PDF in an “unlocked” form. Mack, at *4.

First, the Defendants agreed to produce the responsive information as a summary instead of producing the actual information.  Secondly, the Defendants voluntarily produced the PDF as a summary of the Plaintiffs’ requested information.  Mack, at *3-4. 

The Court stated whether the PDF was unlocked and editable or locked and uneditable had “no bearing on its status as work product.” Mack, at *3. 

The Court held there was no substantive difference between the locked PDF verse the PDF in its original file format.  Mack, at *4.  Thusly, the argument that the Plaintiffs would somehow get a “free ride” if the Plaintiffs could manipulate the data fell flat.

The Form of Production

The Defendants claimed that since no form of production was specified by the Plaintiffs, the Defendants could produce a locked PDF.  Mack, at *5.

The Court’s holding: No.

Federal Rules of Civil Procedure Rule Fed. R. Civ. P. 34(b)(2)(E)(ii) states:

 “…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.” Mack, at *5.

The Court explained the PDF summary was a data compilation that should have been produced in a reasonably usable form.  Mack, at *5.  However, the Defendants chose to produce the 11,757 page PDF that contained around 600,000 individual sales of dryer installations in a locked form.  Mack, at *5-6.  Any attempt to logically unitize the data would have required the Plaintiffs to retype the entire document.  Mack, at *6.  This is not a “reasonably usable form.”

The Court noted that the Plaintiffs in earlier discovery requested all electronically stored information be produced in a form that a “less convenient format.” 

The Court found the Defendants’ form of production arguments to be meritless. 

Undue Burden

The Court was “skeptical” of the Defendants’ undue burden arguments, because that would mean the Defendants themselves did not keep a reasonably usable unlocked file for themselves to use. Mack, at *6-7.

The Court opined that if the Defendants did not keep an unlocked version of the PDF, “…the only plausible motive for rendering the document useless to itself was to set up the very problem that has now arisen, allowing it to plead burdensomeness. If that is the case, [the Defendants] consciously and purposefully created its burden.” Mack, at *7.

In a not-so-shocking order considering the above, the Court granted the Plaintiffs’ motion to compel production of the summary document in its original format. 

Bow Tie Thoughts

Non-Searchable PDF’s

Working with a single non-searchable PDF that is 11,000 pages long is not my idea of a good time.  I helped a friend on a case where the opposing party produced thirteen non-searchable PDF’s each with 1,000 to 2,000 pages (the production was from scanned paper).  We had the service provider logically re-unitize the pages based on document breaks, run optical character recognition over the files and AL Coder for auto-coding.  The newly converted TIFFS with searchable OCR were then loaded into CT Summation iBlaze for review. 

Production Games

Courts frown on gamesmanship. Moreover, Judges scowl at those who take reasonably usable electronically stored information and convert it to a non-usable form without proper objections, perhaps for redactions.  Even then, a producing party would be hard pressed to not produce an un-redacted static image without extracted text and the redacted static image without searchable OCR, minus the redacted sections of the converted ESI. 

The consistent answer across case law from the last five years is that productions should be in a reasonably usable form. Those who eliminate the searchable features do so at their own peril.

The Form of Production Battle of the Bulge: Scanned PDF’s Not a Reasonably Useable Form

“In the court’s experience, scanned PDFs, as opposed to electronically-produced PDFs, are not reasonably usable.”

Magistrate Judge Paul M. Warner

In Accessdata Corp. v. Alste Techs. Gmbh, 2010 U.S. Dist. LEXIS 4566 (D. Utah Jan. 21, 2010), a United States based company that produces forensic software used in e-Discovery, entered into a contract with a German company.  Litigation ensued when a contract dispute broke out and e-Discovery turned into a war. 

The Form of Production Einwand und Angriff

The German Defendants produced electronically stored information as hard copies and converted the scanned images to PDF’s.  The Plaintiffs claimed the production was not reasonably searchable.  Accessdata Corp. at *16.

The Defendants claimed the production was in a “reasonably useable form,” because they printed all the ESI as paper and had it scanned as PDF’s.  Accessdata Corp. at *17.  Adding insult to injury, the Defendant further claimed it would be unduly burdensome and expensive to somehow “fix” the ESI so it was searchable.  Id.

The Plaintiff, perhaps feeling a little like General Patton, cited Federal Rule of Civil Procedure Rule rule 34(b)(2)(E)(ii), which states that electronically stored information should be produced “in a form or forms in which [they are] ordinarily maintained or in a reasonably useable form.” Accessdata Corp. at *17.

e-Discovery Untergang

The Court channeled General Eisenhower in its ruling. 

The Court ruled the Defendant was required to produce its electronically stored information “…in a form or forms in which it is ordinarily maintained or in a reasonably usable form.” Accessdata Corp. at *18. citing Fed. R. Civ. P. 34(b)(2)(E)(ii).

The Court stated the previously produced electronically stored information was ordinarily maintained in an electronic format.  Accessdata Corp. at *18.  Converting ESI to paper and then scanning to PDF’s destroys searchable features of the inherently searchable electronically stored information. 

The Court noted that the option to produce in a “reasonably useable form” does not give a party free rein to destroy the searchable functions of the e-Discovery.  Accessdata Corp. at *18.   If ESI is ordinarily maintained in a searchable form, the information “should not be produced in a form that removes or significantly degrades this feature.” Accessdata Corp. at *18, citing Fed. R. Civ. P. 34(b) Advisory Comm. Notes to 2006 Amendment.

As the Court concluded, “In the court’s experience, scanned PDFs, as opposed to electronically-produced PDFs, are not reasonably usable.” Accessdata Corp. at *18-19.

The Defendant was thusly ordered to re-produce electronically stored information in native file format or an electronically-generated PDF format.  Accessdata Corp. at *19.

Bow Tie Thoughts

Producing electronically stored information as scanned paper in PDF format is about as defensible as the Maginot Line (especially when your opponent makes electronic evidence software).  Parties are ill-served by playing such discovery games, unless they want to be on the losing end of a motion to compel that reads like the Treaty of Versailles.

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.

Data Stream

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.

Check Please

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.