Exotic Apples: Solutions in Collecting & Processing Apple ESI

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.

A PDF Production is Not How a Native File is Ordinarily Maintained

In a production dispute over native files, Magistrate Judge Paul Cherry shows us (again) that producing native files as non-searchable PDF’s does not comply with Federal Rule of Civil Procedure Rule 34. Jannx Med. Sys. v. Methodist Hosps., Inc., 2010 U.S. Dist. LEXIS 122574 (N.D. Ind. Nov. 17, 2010). 

Federal Rule of Civil Procedure Rule 34(b)(2)(E) states:

 (i) 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;

(ii) 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; and

(iii) A party need not produce the same electronically stored information in more than one form.

Jannx Med. Sys., at *8.

The Plaintiffs produced certain native files as PDF’s.  The Defendants argued that the files were normally maintained in a searchable form and the PDF production destroyed their ability to “effectively search or analyze the information.”  Jannx Med. Sys., at *9.  As the Court explained,

“Defendants are unable to determine which of the produced documents are associated with particular maintenance transactions, how the produced reports were generated, or even what data the reports rely upon.” 

Jannx Med. Sys., at *9-10. 

Plaintiffs’ Arguments for PDF Production

The Plaintiffs claimed that their PDF production complied with Rule 34, because the Defendant did not state a form of production.  Jannx Med. Sys., at *10.

The Plaintiffs argued that two cases, one before the 2006 Amendments to the Federal Rules of Civil Procedure, justified their PDF production.  Jannx Med. Sys., at *10.  The Court did agree there were times when a PDF production complied with the Federal Rules of Civil Procedure.

This was not one of them.  Jannx Med. Sys., at *10-11. 

The Court stated the Plaintiffs “ignored” the case law they cited, which discussed the Advisory Committee Note to the 2006 Amendments.  Jannx Med. Sys., at *11.  As the Court restated,

“[I]f the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.”

Jannx Med. Sys., at *11 (citation omitted). 

Don’t Make Productions More Difficult to Search

The Plaintiffs also argued that since the Defendant did not state a form of production, they were, in the words of the Court, “stuck with the form in which Plaintiff chose to produce the information.”  Jannx Med. Sys., at *11.

The Court again cited to the 2006 Advisory Committee Notes, stating,

“[T]he option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation.” 

Jannx Med. Sys., at *12, citing Fed. R. Civ. P. 34 Advisory Committee’s Note on the 2006 Amendments.

As the Court so aptly put: “It appears that this is exactly what Plaintiff has done in this case.”  Jannx Med. Sys., at *12.

The Court ordered the production of ESI “in an electronic database format that allows the information to be reasonably usable, i.e., fully searchable and manipulable, with the connections between data fields intact.”  Jannx Med. Sys., at *12.

Bow Tie Thoughts

Case law is riddled with discovery games of stripping searchable features from native files.  Such tactics drive up discovery costs because of wasted time in coding databases that should be populated with fielded data; unnecessary OCR costs of static images when ESI was already searchable; and associate attorneys spending the best years of their lives reviewing now non-searchable static images one file at a time, when they should be searching for what is relevant. 

Civil litigation unfortunately can be a blood sport.  Between the “gotcha” tactics and legitimate concerns for redacting confidential information, Courts will be dealing with cases like the above for years to come.

Circular Form of Production Objections

In a form of production battle, the producing party claimed they were denied the opportunity to object to the form of production, because the requesting party did not state a form of production.  The Court did not need to use Pi to solve this circular argument.

Procedural Circles

After a motion to compel battle, the Defendants were ordered to produce their general ledger in electronic format within 10 days of the Court’s order. Estate of Eva Boles v. Nat’l Heritage Realty, Inc., 2010 U.S. Dist. LEXIS 79770, at *7 (N.D. Miss. Aug. 6, 2010).

The Defendants were to also file with the Court an itemized cost breakdown on their production costs.  Id.

The Defendants argued they should be allowed to produce their ledger in PAPER format within 4 to 6 weeks of the Court order.  Estate of Eva Boles, at *7.

The Defendants first estimated their production costs to be $30,000.  They upped the ante and requested the Plaintiffs deposit $292,296.07 with the Court for their production costs.  Estate of Eva Boles, at *8.

The Court said “No” to the paper production and the $292,296.07 deposit.

After several hearings on numerous issues, the Defendants finally produced the general ledgers…sort of.

The Defendants explained in their production letter that the ESI produced was encrypted and subject to the following limitations:

1) Could only be viewed on a single computer;

2) Could not be printed;

3) Could not be e-mailed; and

4) Would only be accessible until September 3, 2010.

Estate of Eva Boles, at *12.

The Defendants also would be notified once the license to view had been activated.  Estate of Eva Boles, at *12.

The Court in turn ordered the Defendants to produce unrestricted ESI.  The Defendants filed an emergency motion for reconsideration.  Estate of Eva Boles, at *12-13.

Federal Rule of Civil Procedure Rule 34 Redo

The Defendants’ key argument was that they were “denied” the “procedural protections” of Federal Rule of Civil Procedure Rule 34.

To recap Federal Rule of Civil Procedure Rule 34:

A party can request, “any designated documents or electronically stored information . . . 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.” Estate of Eva Boles, at *16, citing Federal Rule of Civil Procedure Rule 34(a)(1)(A).

A party “may specify the form or forms in which electronically stored information is to be produced.” Estate of Eva Boles, at *16-17, citing Federal Rule of Civil Procedure Rule 34(b)(1)(C).

The producing party may object to the form of production and state which form they intend to use. Estate of Eva Boles, at *17, citing Federal Rule of Civil Procedure Rule 34(b)(2)(D).

Federal Rule of Civil Procedure Rule 34(b)(2)(E) states:

 (i) 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;

(ii) 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; and

(iii) A party need not produce the same electronically stored information  in more than one form.

The Defendants’ argument can be summarized as circular:  They claimed did not object to the form of production, because the Plaintiffs did not state a form of production, therefore, they were denied the opportunity to object to the form of production.  Estate of Eva Boles, at *18.

The Defendants did not raise any objections on the form of production until their third hearing on producing the general ledgers, which was 6 months after the request was first served and three months before trial.  Estate of Eva Boles, at *19-20.

The general rule on objections is if you fail to timely object to a discovery request, you waive your objection.  Estate of Eva Boles, at *20.

That is exactly what the Court held.

The Court further took the Defendants to task for their production failures under Federal Rule of Civil Procedure Rule 34(b)(2)(E)(ii), which states that when no form of production is stated, the ESI must be produced in “a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Estate of Eva Boles, at *22.

Even if there had not been a waiver of their objections, the Defendants still did not comply with Rule 34(b)(2)(E)(ii).

Bow Tie Thoughts

Discovery can turn into a war of attrition:  Drive up the cost to force the other side to give up.

The Defendants’ attempt to force a $292,296.07 paper production is exactly one of those tactics, whether intentionally or not.  The repeated motion practice also would drive up the cost of litigation.

e-Discovery does not mean production costs are perfunctory expensive.  However, protracted form of production battles that go on for months will drive up costs; form of production arguments sprung on a court in the waning months before trial will unnecessarily drive up costs, let alone tick off the judge.

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.