Pizza & Metadata: Order It The Way You Want It

pizzawhiteThe form of production is a lot like ordering a pizza: say what you want. Thin crust, sauce, topping. All are things you can order.

Requesting electronically stored information is exactly the same. You can request native files and types of metadata just like you are ordering a pizza. You could also request static images with specific fields of metadata. It does take a little longer to process than 30 minutes.

RPM Pizza, LLC v. Argonaut Great Cent. Ins. Co., drives home this point literally and figuratively.

Magistrate Judge Stephen C. Riedlinger understands the mechanics of how to request the form of production. In this case, the Producing Party (Argonaut) challenged the Requesting Party’s (Domino’s) stated form of production with the argument the Requesting Party had not shown why it was “necessary…to produce in a format that complies” with their production instructions. RPM Pizza, LLC v. Argonaut Great Cent. Ins. Co., 2013 U.S. Dist. LEXIS 165200, at *12-13 (M.D. La. Nov. 15, 2013).

Magistrate Judge Riedlinger was wonderfully direct:  The simple answer is that Domino’s is not required to do so. Id.

The Requesting Party’s request for production stated their production format requirements in Instruction Number 5, which apparently was .tiff with metadata. The Producing Party produced PDF’s without metadata. RPM Pizza, LLC, at *11.

The Court explained that a party can specify the form of production pursuant to Federal Rule of Civil Procedure Rule 34(b)(2)(E). RPM Pizza, LLC, at *11-12. The Producing Party waived any objections by not timely making them and attempting to rely on a general objection. Id. The general objection could not reasonably be interpreted as an objection to the Requesting Party’s stated form of production. Id.

As such, the Court ordered the re-production of discovery that did not comply with the request for production. RPM Pizza, LLC, at *14.

Bow Tie Thoughts

We are nearly at the seventh anniversary of the Federal Rules of Civil Procedure. We have had litigation support review software for over twenty years. Yet, the form of production is still a fight for many attorneys.

I recently spoke to a group of attorneys on eDiscovery. I was troubled to find out most of them did not understand the core concepts of requesting ESI. One took the position, “I will not let the other side just go through my client’s computer.”

First off, the Federal Rules of Civil Procedure (and every state as far as I can tell) would never allow that to happen. You need compelling reasons to examine someone’s computer, such as evidence of wrongdoing in a production.

However, those types of reactions keep lawyers from getting anywhere near Rule 34(b)(2)(E) and understanding how to request ESI, let alone how to review a production.

Fighting over the form of production is an expensive battle that should not be happening. Today’s producing software can generate a production of ESI with control numbers, MD5 hashes, and metadata with keystrokes. There is skill involved in winnowing down the data, but the technology is fairly sound at this point.

We also have amazing review technology that allows for clustering of like files, conceptual search and other advanced analytics. Fighting over the form of production only adds time and costs to a lawsuit when you can be analyzing the data instead.

As I said before, stating the form of production is just like ordering a pizza. Say what you want. You do not need to explain to the other side you like chicken garlic pesto.

Proving the Negative in Discovery Productions

confusedA requesting party has a very difficult problem when a producing party has made a very small production that the requesting party believes is deficient.

This situation quickly turns into the requesting party trying to prove a negative to the Court that a production is inadequate, without any evidence to support the argument.

However, just because a requesting party cannot prove a production is inadequate, does not mean the production is adequate.

A Court was faced with this issue in Am. Home Assur. Co. v. Greater Omaha Packing Co. The requesting party argued that the production of only 25 email messages in a case where discovery started in July 2012 was inadequate. However, the Court stated it “cannot compel the production of information that does not exist.” Am. Home Assur. Co. v. Greater Omaha Packing Co., 2013 U.S. Dist. LEXIS 129638, at *17  (D. Neb. Sept. 11, 2013).

The Court ordered the following as a solution:

Discovery on this matter has been ongoing since July of 2012. It is unclear to the Court why ESI that has presumably been in GOPAC’s possession since the start of discovery has not been fully produced. To provide Cargill an adequate opportunity to contest discovery of ESI, the Court will order GOPAC to disclose the sources it has searched or intends to search and, for each source, the search terms used. The Court will also order all ESI based on the current search terms be produced by November 1, 2013. However, given Cargill’s failure to point to any specific information that has been withheld or additional sources that have not been searched, no further action by the Court is appropriate at this time.

Am. Home Assur. Co., at *17-18.

Bow Tie Thoughts

This is a hard issue for any Judge and requesting party. I believe the Court reached the best solution with what was known by the Court and parties.  Moreover, the Court knew when to stop with its order.

Will a small production always result in a producing party being compelled to disclosed what it searched, what it intends to search and search terms? Most likely no, but it is a good alternative to forcing a requesting party to prove a negative.

Still No Rummaging Through Social Media in Discovery

Dislike-StampCourts will not ReTweet or “Like” discovery requests for social media that are simply fishing expeditions.

In Salvato v. Miley, the Plaintiff requested the following discovery:

Interrogatory 12

Please identify whether you had any social media accounts and/or profiles including, but not limited to, Facebook, Twitter, MySpace, you have had at any time from July 5, 2012-February 1, 2013. For each account, please provide the name and/or username associated with the profile and/or social media account, the type of social media account (e.g. — Facebook, Twitter, etc.), the email address associated with the social media account, the dates you’ve maintained the account, and/or whether the account is still active.

Request No. 3

Please produce a copy of any and all electronic communication either sent or received by you through social networking sites, including, but not limited to, Facebook, Twitter, and/or MySpace, between July 5, 2012 — February 1, 2013, that relate in any way to the incident that is described in the Second Amended Complaint. Please exclude any electronic communications that were sent and/or received exclusively between yourself and your attorney.

Salvato v. Miley, 2013 U.S. Dist. LEXIS 81784, 3-4 (D. Fla. 2013)

The Court held the discovery requests were not reasonably calculated to lead to the discovery of admissible evidence. Salvato, at *6-7. The Court explained:

Here, Plaintiff simply contends that the requests are relevant because, “Plaintiff is seeking information about statements that Defendant Brown made about the incident at issue in this case, which could include admissions against interest, and could certainly lead to the discovery of admissible evidence.” (Doc. 27 at 7). The mere hope that Brown’s private text-messages, e-mails, and electronic communication might include an admission against interest, without more, is not a sufficient reason to require Brown to provide Plaintiff open access to his private communications with third parties. Indeed, Plaintiff has “essentially sought permission to conduct ‘a fishing expedition’ . . . on the mere hope of finding relevant evidence.” Tompkins v. Detroit Metropolitan Airport, 278 F.R.D. 387, 388 (E.D.Mich. Jan. 18, 2012)(quoting McCann v. Harleysville Ins. Co. of New York, 78 A.D.3d 1524, 1524, 910 N.Y.S.2d 614 (N.Y. App. Div. 2010)). A party “does not have a generalized right to rummage at will through information that Plaintiff has limited from public view.” Id.

Salvato, at *6-7.

Bow Tie Thoughts

Requests for social media, text messages and other ESI must be narrowly tailored and not a rummaging expedition at a garage sale.

“Hoping” a text message or social media wall post exist does not make them a reality. With that said, it is a challenge to draft a more specific discovery request without knowing who the Defendant communicated with regarding the incident in the lawsuit.

Discussing possible custodians, whether they communicated by email, text, or social media, is an excellent meet and confer topic. Another good pointer is to narrow the time period, which the request at issue in this case did do.

If a requesting party is after specific social media communications, requesting messages or postings from specific dates, stated topics and between named individuals are factors to make a request narrowly tailored. For example, a party in an auto accident may take a photo of the car damage on Instagram (which would be odd, but possible). Instead of requesting all social media photos, requesting any photos taken the day of the incident would certainly be one way to acquire the discovery.

You Might Want a Glass of Wine: No Costs for Native File Processing

It is sad when good arguments fail. Taxation of cost cases frequently deny processing costs of native files, unless there is conversion to a static image. Conversion of native files to static images can significantly increase processing costs, opposed to keeping native files in their original format.

RedWinePourIt is fitting that a taxation of cost case involved wine, because an attorney will want a glass of wine if unsuccessful on a cost motion.

In Country Vintner of N.C. v. E. & J. Gallo Winery, the Court summarized Gallo’s arguments as follows:

Gallo argues that its ESI-processing charges are taxable as fees for “making copies” under § 1920(4) because ESI has “unique features”: ESI is “more easily and thoroughly changeable than paper documents,” it contains metadata, and it often has searchable text. Opening Br. 23, 26-27. Gallo contends that converting native files to PDF and TIFF formats “produce[ d] static, two-dimensional images that, by themselves, [we]re incomplete copies of dynamic, multi-dimensional ESI”; other “processing . . . was necessary to copy all integral features of the ESI.” Id. at 28 (emphasis in original). Gallo argues that it had to remove ESI from container files, extract and index text to make it searchable, copy metadata, and load the data onto a “review platform” to allow “the native files and their associated metadata [to] be viewed and their text [to] be searched as if the native files were being opened in the software applications that created them.” Id. at 28-29. Gallo concedes that this process was far more involved than that necessary to copy paper documents but argues that just as copying a table or dress requires a different approach than copying a paper document, copying ESI also requires a different approach. Id. at 26.

Country Vintner of N.C. v. E. & J. Gallo Winery, 2013 U.S. App. LEXIS 8629, 25-27 (4th Cir. 2013).

Gallo made a very good argument, like a bold cabernet, with a hint of carmel and oak. Unfortunately, the Court poured it down the drain like it was vinegar.

Country Vinter claimed Gallo distorted “the plain meaning of the statute” and “misconstrue[d] the act of processing.” Moreover, Country Vinter argued processing was “not required in order to produce copies to Country Vintner, only to assist Gallo with its review.” Country Vintner of N.C., at *27.

Country Vintner disputed the argument that Gallo “had no choice but to process the ESI . . . in order to comply with its discovery obligations,” because “Country Vintner never demanded that Gallo produce processed ESI replete with metadata and searchable text.” Id.


The Court took a wine tasting tour of Race Tires America, Inc. v. Hoosier Racing Tire Corp and when eDiscovery processing could be recoverable.

The Court summarized Race Tires as follows:

In Race Tires America, Inc., the Third Circuit held that, “of the numerous services [that] [electronic discovery] vendors [had] performed” in that case, “only the scanning of hard copy documents, the conversion of native files to TIFF, and the transfer of VHS tapes to DVD involved ‘copying’” within the meaning of § 1920(4). Race Tires Am. Inc., 674 F.3d at 171. The court reasoned that [s]ection 1920(4) does not state that all steps that lead up to the production of copies of materials are taxable. It does not authorize taxation merely because today’s technology requires technical expertise not ordinarily possessed by the typical legal professional. It does not say that activities that encourage cost savings may be taxed. Section 1920(4) authorizes awarding only the cost of making copies. Id. at 169 (footnote omitted). The court recognized that “extensive ‘processing’” may be “essential to make a comprehensive and intelligible production” of ESI. Id. Hard drives may need to be imaged, the imaged drives may need to be searched to identify relevant files, relevant files may need to be screened for privileged or otherwise protected information, file formats may need to be converted, and ultimately files may need to be transferred to different media for production. Id. Nonetheless, the court reasoned, “that does not mean that the services leading up to the actual production constitute ‘making copies.’” Id. The process employed in the pre-digital era to produce documents in complex litigation similarly involved a number of steps essential to the ultimate act of production. First, the paper files had to be located. The files then had to be collected, or a document reviewer  had to travel to where the files were located. The documents, or duplicates of the documents, were then reviewed to determine those that may have been relevant. The files designated as potentially relevant had to be screened for privileged or otherwise protected material. Ultimately, a large volume of documents would have been processed to produce a smaller set of relevant documents. None of the steps that preceded the actual act of making copies in the pre-digital era would have been considered taxable. And that is because Congress did not authorize taxation of charges necessarily incurred to discharge discovery obligations. It allowed only for the taxation of the costs of making copies. Id. The Third Circuit further reasoned that the Supreme Court has “accorded a narrow reading to the cost statute in other contexts,” and “[n]either the degree of expertise necessary to perform the work nor the identity of the party performing the work of ‘making copies’ is a factor that can be gleaned from § 1920(4).” Id. at 169, 171. “Nor may the courts invoke equitable concerns . . . to justify an award of costs for services that Congress has not made taxable.” Id. at 170.

Country Vintner of N.C., at *27-29.

Despite rejecting Gallo’s processing cost argument, the Court stated the following in footnote 19:

We are mindful that converting ESI from editable to non-editable formats, or copying ESI in its native format, often encompasses the copying of metadata. If, for instance, a case directly or indirectly required production of ESI-unique information such as metadata, we assume, without deciding, that taxable costs would include any technical processes necessary to copy ESI in a format that includes such information. This case does not fall within those limited circumstances.

Country Vintner of N.C., at *30, fn 19.

Based on the above, the Court upheld the District Court’s holding that the only recoverable costs for “making copies” under § 1920(4) were the conversion of native files to TIFF and PDF formats, and the transfer of files onto CDs. Country Vintner of N.C., at *32.


Bow Tie Thoughts

I think the legal definition of “making copies” only applying to converting native files to static images is wrong legally and technically. I believe one of these cases can be successful if the moving party understands the issue and has an expert who can explain how data is “copied” in eDiscovery processing to a judge knowledgeable about eDiscovery workflow.

A copy of ESI is made by the very act of data collection and processing the data for a review platform. After conducting review, data is often processed again from the producing party to the requesting party, due to privilege or the simple fact the parties have different review platforms. Moreover, producing “metadata” or searchable text is not “extensive processing”; it is normal processing.

To put it bluntly, a request for production of electronically stored information not to include metadata or searchable text is like asking for a paper production without ink on the pages.

Let’s consider the following:

The taxation of cost statute states:

Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;

28 USCS § 1920(4).

Federal Rule of Civil Procedure Rule 34(a)(1)(A) permits a party to request electronically stored information that is “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.” The requesting party can state its form of production. In the event no form is stated, the ESI must be produced in the form it is “ordinarily maintained or in a reasonably usable form or forms.” Federal Rule of Civil Procedure Rule 34(b)(2)(E). Electronically stored information is ordinarily maintained in its native applications with metadata.

The defensible “collection” of ESI produces a copy of the data. This data is then “processed” to be loaded into a review platform for discovery review.

Many Court opinions recognize the need for substantive or embedded metadata. Moreover, many opinions recognize that a production as non-searchable static images is not in a reasonably useable form (see Jannx Med. Sys. v. Methodist Hosps., Inc., 2010 U.S. Dist. LEXIS 122574 (N.D. Ind. Nov. 17, 2010)). Additionally, metadata is needed to leverage the search technology that can organize communications based on time and other analytical tools vital to understand electronically stored information.

The fact that the Federal Rules of Civil Procedure create a default for ESI to be produced as it is ordinarily maintained should not be a prohibition on later recovering processing costs. Each step in the process of collecting data and processing it for a review platform and ultimately production is a technological necessity to make a copy. Simply put, requiring native files to be be converted into static images for taxation of costs drives up the production costs. Worse yet, producing static images dramatically reduces the data’s utility in any review platform. This is contrary to Federal Rule of Civil Procedure Rule 1′s mandate to control costs, creating a cost incentive for inefficiency.

Hands-on eDiscovery: California Seminar on Responding to Discovery Requests

I had the good fortune to organize a seminar on responding to electronic discovery requests for the Santa Clara County Bar Association’s Civil Practice Committee on February 27, 2013. However, this seminar was different from other eDiscovery CLE’s, because the attendees spent a full hour conducting searches for responsive ESI to requests for production. The speakers included Santa Clara County Judge Socrates Manoukian (currently assigned to civil discovery), Tyler Atkinson of McManis Faulkner and Charlie Kaupp of Digital Statra.

Our seminar first focused for one hour on the California eDiscovery Act, California Rules of Court on eDiscovery, search and strategies for conducting document review.

Unfortunately, there is very little published California case law on eDiscovery. We have two main cases to explore, specifically Toshiba America Electronics Components v. Superior Court, 124 Cal. App. 4th 762, 764 (Cal. App. 6th Dist. 2004), which addressed mandatory cost-shifting for translation of back-up tapes into a reasonably useable form and Doppes v. Bentley Motors, Inc., 174 Cal. App. 4th 967 (Cal. App. 4th Dist. 2009), which does not address the eDiscovery Act, but unstated litigation hold issues and eDiscovery abuses resulting in an answer stricken and a default judgment entered.

However, at least one unpublished California opinion hints Courts want more than mere speculation that a discovery production was inadequate:

Following remand, Sukumar asked Nautilus to disclose its e-mails and all other electronically stored information concerning the Med-Fit order. After Nautilus responded that it had already disclosed all relevant documents, Sukumar filed a motion to compel. The trial court denied the motion, concluding that Nautilus’s response was sufficient and Sukumar “has offered only speculation that additional documents exist.” On appeal, Sukumar asserts that the trial court’s order denying his motion to compel should be reversed.

Sukumar v. Med-Fit Sys., 2012 Cal. App. Unpub. LEXIS 3309 (Cal. App. 4th Dist. May 2, 2012).

The appeal in the above case was denied, however it a glimpse at how California courts are handling production issues. Unfortunately, California discovery orders are not published and unpublished cases cannot be cited for any precedential value.  We literally have to watch for tentative orders to see how these issues are being presented to the courts to determine any trends. 

Review-TeamThe second hour required attendees to work as teams in a review database finding responsive discovery from the ENRON dataset, which was provided by Digital Strata in their InControl review platform.

Searching for responsive electronically stored information is a frequent topic at continuing legal education seminars, but infrequently a hands-on experience for attorneys. Our attendees were very engaged and diligently worked through the different hypothetical discovery requests.

We gave several case law examples of “bad” discovery requests, such as the following:

Produce any and all information related to email, including messages, from 1997 to 2006. 

Using the above as a reminder that production requests must be reasonably tailored to secure the production of documents relevant to the issues in a Federal lawsuit (See,Thompson v. Jiffy Lube Int’l, 2006 U.S. Dist. LEXIS 27837 (D. Kan. May 1, 2006)), we developed Requests for Production such as the following for the attendees:

Request for Production 3:

Any and all electronically stored information pertaining to the $56 million loss on Catalytica Energy Systems, sent between 12/01/2000 to 12/31/2001, in native file format, with the following extracted text or metadata:

From, To, CC, BCC, Date, Time, Subject, Document Author, Document Name, Custodian, Control Number, Folder (System File Pathway).

Request for Production 4: 

Any and all electronically stored information authored by Will Nolen, Sally Beck, Susie Ayala, Shona Wilson or David Port relating to project “jedi” sent between 1/01/2000 to 12/31/2001, in native file format with extracted text, substantive and embedded metadata.

One hour of conducting searches is only the beginning of how to respond to discovery requests. However, it is a very good first hour for attorneys who want to learn how to effectively search and respond to discovery requests.

Working with virtual screen

I would like to put together a future program focused on conducting privilege review, redaction, production and privilege log creation at a future seminar. I also think attorneys would benefit from a half to full day conference focusing on practical eDiscovery, such as issuing litigation holds, tracking hold compliance, document review strategies, developing search strings, testing different search tools (i.e., concept, complex Boolean, predictive coding), and production.

Conducting discovery is a skill. Like any skill, it is best to learn it by actually doing it. I believe our profession needs more hands-on eDiscovery events for attorneys to build their comfort level and confidence to competently represent their clients.

Drop-by-Drop Water Torture Productions

There are judges who have a way with words when they want to make a point. One example of such judicial prose was by Magistrate Judge Gregory G. Hollows in Botell v. United States:

At this juncture, the United States has purportedly been looking for documents for months, yet the undersigned, to the date of the hearing, does not have confidence that an organized, thorough search has been performed. Rather, defendant’s document production performance in these proceedings has been akin to a drop-by-drop water torture. At some point, plaintiff must be protected from the United States’ further belated production of pertinent documents. The court now enters a preclusion order prohibiting the United States from presenting evidence in its case that had been requested by plaintiffs in the Requests for Production, but which has not been produced by the date of compliance with this order.

Botell v. United States, 2012 U.S. Dist. LEXIS 134265, 15-16 (E.D. Cal. Sept. 18, 2012).

Botell v. United States is a wrongful death and personal injury case involving a minor injured and another killed at a National Park. The Government produced over 7,000 pages of documents, but there was a “a glaring lack of production of emails from defendant’s agents and employees.” Botell, at *11-13. Moreover, the total number of custodians produced by the Defendant totaled one.

The Plaintiffs argued five other relevant custodians’ emails needed to be produced, because the custodians were referenced in the already produced ESI. Botell, at *11.

The Defendants produced one declaration by the Chief Ranger at the park, which explained his efforts to find responsive email.

These efforts included “searching” the office and network drives, and the Ranger’s coordination with officials and IT personnel at another National Park to search another custodian’s computer. The declaration was silent on any search for emails by the other custodians. Botell, at *11-12.

Another declaration curtly explained the back-up policy for Lotus Notes emails as follows: “[B]ack-up emails are retained for 30 days only, unless they are subject to a litigation hold notice or pertain to the BP Gulf Oil spill.” Botell, at *12.

The Court ordered the Defendants to provide a declaration explaining the searches conducted to locate physical and electronic copies of responsive emails by the five custodians. The Court specifically required the following:

The declaration shall state the steps taken to locate these emails, whether any such emails exist, and if not, a definitive statement that they no longer exist. If further responsive documents are located, they shall be produced at the time declarations are filed.

Botell, at *12-13.

Bow Tie Thoughts

Nothing goes for the jugular like a preclusion order for failing to produce discovery. Botell is a powerful example of the dangers of what appeared to be “do it yourself” collection. While it was not outright stated the Defendant did not have an eDiscovery collection expert, it sure sounds that way from the context of the declarations.

One would hope when a large organization has a triggering event for a lawsuit, an effective litigation hold is enacted. Many of today’s records information management systems have the ability to electronically sequester a specific custodian’s email and ESI with a keystroke. Additionally, much of this technology has Early Case Assessment and data reduction features that can identify the relevant information for attorneys to review.

An organization should either have professionals trained in the search and preservation of ESI or retain outside professionals to competently preserve ESI. The steps taken to search and identify responsive ESI must be documented and should, at a minimum, explain the search methodology; technology used; data sources searched; search results; possible exclusions or exotic files; and anything else relevant to explain to a judge how ESI was searched.

A requesting party should not have to blink “torture” in Morse Code for a judge to stop a party neglecting their discovery obligations. An attorney’s duty of competency should compel their preservation obligations are met with those trained to effectively find and produce responsive discovery.

Always Explain “Why” to the Judge

A Plaintiff brought a motion to compel “access to electronic records,” claiming the Defendants had “withheld electronically stored information” and had not produced a “chronological e-mail history of any kind.” Murray v. Coleman, 2012 U.S. Dist. LEXIS 130219, 1-3 (W.D.N.Y. Sept. 12, 2012).

The Defense attorney claimed that the Defendant had produced “copies (free of charge) of the documents sought,” thus rendering the Plaintiff’s motion “moot.” Murray, at *2.

The Plaintiff countered that, “virtually no electronic records [were] included” in the discovery production.  Id. Moreover, the Plaintiff claimed there was never a “systemic search” of the Defendant’s databases and that he “has not received any chronological electronic records related specifically to a single Defendant and/or electronic communications concerning extensive claims” in the case. Murray, at *2-3.

Magistrate Judge Jonathan W. Feldman stated the Defense attorney’s “terse response” made it difficult to determine whether the Defendants had produced all the responsive email to the Plaintiff’s request for production. Murray, at *3. Moreover, the Court noted that the Defense Declaration had “not provide any details regarding how and where electronically stored information (“ESI”) is held, what efforts were made to preserve relevant ESI, and the method used by defendants to locate, search and produce relevant ESI.” Murray, at *3.

The Court referred to the “inadequacy” of the Defense response to the motion to compel and thus construed the response effectively argued that the electronically stored information was not produced because it was not “reasonably accessible.”  Murray, at *3.

In situations where a party resists the production of ESI, Federal Rule of Civil Procedure Rule 26(b)(2)(B) requires that “the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost.”

Case law also requires responding parties to demonstrate how ESI is not reasonably accessible as follows:

[I]dentify, by category or type, the sources containing potentially responsive information that it is neither searching nor producing. The identification should, to the extent possible, provide enough detail to enable the requesting party to evaluate the burdens and costs of providing the discovery and the likelihood of finding responsive information on the identified sources.

Murray, at *3-4, citing Star Direct Telecom, Inc. v. Global Crossing Bandwidth, Inc., 272 F.R.D. 350, 358-59 (W.D.N.Y. 2011).

The Court ordered the Defendants to comply with Rule 26(b)(2)(B) by filing an affidavit by a person with direct knowledge of the Defendant’s document and email retention system stating:

 (1) The document/email retention policy used by DOCS currently and during the relevant time periods;

(2) The dates of emails “reasonably accessible” for production in this litigation;

(3) The back up or legacy system, if any, used by DOCS to preserve or archive emails that are no longer “reasonably accessible” and whether responsive documents or data may potentially be found on such back up or legacy systems;

(4) Whether accessing archived or back up emails would be unduly burdensome or costly and why; and

(5) The date when a litigation hold or document preservation notice was put in place by DOCS regarding this matter and either a copy of or a description of the preservation or litigation hold utilized by DOCS.

Murray, at *4-5.

Bow Tie Thoughts

I have met Federal and state court judges across the country with one unifying factor on ESI productions: they want to know what was done to find responsive electronically stored information. Gone are the days of lawyers merely telling a judge, “Your Honor, finding email is unduly burdensome and expensive.” Such statements need to be support with specific facts, not empty rhetoric.

Judges are heavily armed with a one word question when an attorney claims ESI is not reasonably accessible: Why?

Magistrate Judge Jonathan W. Feldman outlined excellent points that a party likely would have to answer in many cases. While cases obviously can vary, other possible factors to consider include:

Search methodology required to identify ESI;

Type of electronically stored information;

Technology required to render the ESI into a “reasonably accessible”;

Time required to performance the relevant work;

Cost estimate for process or translate the ESI into a reasonably useable form;

Review cost estimate

This is by no means an all-inclusive list. A person with eDiscovery knowledge can determine what is enough detail to enable a requesting party (and Court) to evaluate the burdens and costs of producing the discovery and the likelihood of finding responsive ESI under the facts of a given case.

Discovery from 3rd Party Vendors

A company outsourcing payroll, human resources and other business services to third parties is standard operating procedure today.  However, what happens when there are discovery requests for a party’s business information hosted by a third-party?

Such discovery requests caused a court to play butcher to carve out the discovery obligations of the parties and third-party vendors in Bush v. Ruth’s Chris Steak House, Inc.

Bush v. Ruth’s Chris Steak House, Inc., is an employment dispute. The first dispute with third-party discovery involved the Defendant’s applicant tracking database. The Defendant did not produce the information, because their third-party vendor maintained it. Bush v. Ruth’s Chris Steak House, Inc., 2012 U.S. Dist. LEXIS 86351, at *10 (D.D.C. June 18, 2012).

The Plaintiffs argued that the Defendants needed to produce and bear the costs of production, because the information was under the Defendant’s custody and control. Id.

The Defendant countered that they did not have “possession” of the applications and that they did “not have control because they have neither possession of the documents nor an employment relationship with the third party vendors, such that Defendants would have a legal right to obtain the documents at issue ‘on demand.’” Id.

As such, the Defendant took the position the Plaintiffs needed to either 1) pay for the production or 2) do a Rule 45 request to the third-party. Bush, at *10-11.

The key issue was whether the Defendant had “control” of the requested discovery.

Case law states the following on “control”:

Control does not require that the party have legal ownership or actual physical possession of the documents at issue, but rather “the right, authority or practical ability to obtain the documents from a non-party to the action.”

Bush, at *11.

The Court did not spend a much time carving up the issue of control, finding it would require a large investment of judicial resources to determine if the Defendant actually controlled its vendor. As such, the cost of $500 for producing the information was to be divided between the parties. Bush, at *12-13.

The other discovery at issue were the employee tests that allegedly were the barriers for advancement for the female employees. Bush, at *13.

A third-party maintained the tests and scores. The third-party stated retrieving the test data would take 40 or more hours. The cost was $150 an hour for the work (so at least $6,000). Id.

The Defendant also maintained the tests in the personnel files, but refused to compile the records, arguing that a prior Court Order stated they were not required to “compile results from review of employee records.”  Id.

The Court was blunt: “The test data sought is in Defendants’ possession, and therefore must be disclosed under Rule 34.”  Id.

The Court explained the prior Order applied to human resource data, not test records. Moreover, the issue of test data was discussed in another area of the Court Order and was not excluded from production. Bush, at *13-14.

Bow Tie Thoughts

Companies use third-party vendors extensively in modern business. Courts will not likely tolerate producing parties using those relationships as a shield from production. Courts will either focus on whether the producing party had “control” of their data; order the producing party to bear the production costs; split the costs between the parties; or require a third-party request in some situations.

My instincts tell me it will likely be the producing party who has to take the laboring oar in ordering the production of data hosted by a third-party vendor. It is very easy for information hosted by a third-party to fall under the Stored Communication Act or other privacy laws regulating hosted data. Moreover, a Rule 34 request can force the producing party to consent to disclosure under the Store Communication Act in order to respond to the request, opposed to requiring the third-party to seek consent from the actual party. As such, focusing on the party and their control over their data is likely the direct approach in requesting such information, opposed to Rule 45 requests on the third parties.

Cowboys & Lawyers: Spaghetti Western eDiscovery

Judge Facciola stands as one of the single most prolific Federal Magistrate Judges in the United States.

Once again, the bow tie wearing jurist eloquently laid down the law in Tadayon v. Greyhound Lines, Inc. The discovery order concluded with the following passage:

III. High Noon

As explained at the discovery status hearing held on April 30, 2012, there is a new sheriff in town—not Gary Cooper, but me. The filing of forty-page discovery motions accompanied by thousands of pages of exhibits will cease and will now be replaced by a new regimen in which the parties, without surrendering any of their rights, must make genuine efforts to engage in the cooperative discovery regimen contemplated by the Sedona Conference Cooperation Proclamation. First, the parties will meet and confer in person in a genuine, good faith effort to plan the rest of discovery. They shall discuss and agree, if they can, on issues such as the format of any additional productions, the timing and staging of all depositions, the submission to each other of discovery reports, and the scope and timing of any Federal Rule of Civil Procedure 30(b)(6) depositions. The parties will then jointly submit their discovery plan for my approval. I commit myself to work with them in resolving any disagreements, whether they arise initially or during discovery. To that end, I will schedule a telephonic status conference every two weeks in which I will ask the parties about their progress (or lack thereof) and try to resolve any disagreements they have.

Tadayon v. Greyhound Lines, Inc., 2012 U.S. Dist. LEXIS 78288, 15-17 (D.D.C. June 6, 2012).

What procedural history did the parties ride through for the Court to order a telephonic status conference every two weeks?

The Wild Bunch

There is an old cowboy quote that applies to lawyers and eDiscovery: Generally, you ain’t learnin’ nothing when your mouth’s a-jawin’.

The case involved patent infringement claims of wireless technology wrongfully being used on the Defendants’ busses. Both sides had dueling discovery motions.

The pro se Plaintiffs brought a motion to compel discovery responses after the Defendants at first produced paper and then ESI.  The Court quickly held the motion to compel moot. Tadayon, at *2.

Unforgiven: Clawing Back Inadvertent Productions

The Defendants inadvertently produced privileged discovery that they “clawed back” pursuant to agreement. The Plaintiffs argued that any privilege was waived because of the Defendants’ “hurried negligence.” Tadayon, at *4.

The Plaintiffs’ argument failed, because the clawback agreement was not in any way conditioned.  Id.  As the court stated, “Since the right to clawback was not so conditioned, the agreement stands as written and defendant may recall the privileged documents, irrespective of whether or not its initial production was negligent.”

My Darling Clementine, Plaintiffs’ Sanctions Are Denied

When you’re throwin’ your weight around, be ready to have it thrown around by somebody else.

Unknown Cowboy Quote

The Plaintiffs sought sanctions and attorneys’ fees against the Defendant, which the Court denied. The Plaintiffs claimed that the Defendants did not timely respond to discovery requests. Moreover, the Plaintiffs alleged that the Defendants purposely delayed their production until they filed a motion to stay. Tadayon, at *4-5.

The Plaintiffs based their sanctions motion on the timing of communications with the Defendant, production history and the District Court’s original minute orders regarding the Plaintiffs’ discovery requests. Tadayon, at *4-5.

Judge Facciola’s analysis focused on the minute orders to determine if Rule 37 sanctions (attorneys’ fees) were warranted. The Court held sanctions were not warranted, because the minute orders applied to the Defendants’ obligations mandated by Rule 26 of the Federal Rules of Civil Procedure, not the obligations imposed by a prior court order, as required by Rule 37. Tadayon, at *7-8.

Even if sanctions had been warranted, an award of attorneys’ fees was not available to the Plaintiffs, because they were pro se litigants.  Pursuant to the Rule 37 and case law, pro se plaintiffs’ time does not constitute “expenses incurred” for attorneys’ fees. Tadayon, at *9-11 (Please see the opinion for the detailed analysis of this issue).

Blazing Saddles

The Court held that the Plaintiffs’ motion to compel was not “substantially justified” under Rule 37, because of the timing of the Defendants’ production and the filing of the motion. Tadayon, at *12.

Judge Facciola included a timeline of the Defendants production and the filing of the motion to compel.  Tadayon, at *14. The Court outlined that the Defendants produced 45,417 pages of responsive discovery 10 days after the District Court’s minute order.  Tadayon, at *15. The Defendants continued to supplement their production three times. On the date of the last production, the Plaintiffs filed their motion to compel.  Id. As the Court explained:

[Pl]aintiffs filed their motion compel, even though by the time the document was filed, most of the discovery disputes had been rendered moot by the production of the electronic version of the documents as well as by plaintiffs’ development of their own database. Furthermore, at no point in time after the filing of plaintiffs’ motion to compel did they consider withdrawing it or modifying it even though they knew that most of the issues had been rendered moot. 

Tadayon, at *15.

The Courted ordered the Plaintiffs to show cause why they should not be sanctioned with attorneys’ fees for the time the Defendants spent opposing the motion to compel. Tadayon, at *15.

Bow Tie Thoughts: Dances with ESI

eDiscovery should not be the gunfight at the O.K. Corral. Parties can reduce motion practice and move their cases forward by cooperating effectively during their Rule 26(f) meetings. I stress multiple meetings, because it is unlikely one conference will settle issues such as collection, search terms and production dates.

Cooperating at a meet and confer does not mean surrender. There are technical issues that must be addressed when discussing electronically stored information. According to Michael Arkfeld, some of these issues include:

Understanding Each Party’s IT System

Preservation of ESI

Agreed upon Computer Terminology (how do you define metadata, forms of production, etc)

ESI Types and Storage Media, Devices & Locations

Production Protocols 

Protecting Privileged ESI

Arkfeld’s Best Practices Guide for Electronic Discovery and Evidence (2010-2011), Appendix B, “Meet and Confer” Planning Guide.

There of course are many more issues that can go into great detail at a Rule 26(f) conference. However, these issues are better addressed with attorneys cooperating and not playing Billy the Kid.