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However, at least one unpublished California opinion hints Courts want more than mere speculation that a discovery production was inadequate: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 Unfortunately, California discovery orders are not published and unpublished cases cannot be cited for any precedential value.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. 

The 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.

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.

Printing ESI & Scanning It Is Not OK

In Indep. Mktg. Group v. Keen, the Defendant-Requesting Party requested the corporate Plaintiff conduct targeted searches with specific key words on specific custodians on the Plaintiff’s server.  Indep. Mktg. Group v. Keen, 2012 U.S. Dist. LEXIS 7702 (M.D. Fla. Jan. 24, 2012).

The Plaintiff produced one multiple page PDF without any searchable text or metadata.  Indep. Mktg. Group., at *2.

The Defendant requested the Plaintiff do a reasonable search on their server for responsive ESI.  The Plaintiff responded by producing four “poor quality” PDF files without any search text.  The PDF’s were hundreds of pages long.  Indep. Mktg. Group., at *2.

In the course of the discovery dispute, the Plaintiff later refused to re-produce the ESI, claiming a $10,000 production cost was “a prohibitive cost that [Plaintiff] [was] not willing to incur for the production of the documents [Defendants] requested.” Indep. Mktg. Group., at *3.

The Plaintiff later produced disks with files that could not be opened, including system and temporary files. Indep. Mktg. Group., at *3-4, fn 1.

The Court was not thrilled with the Plaintiff’s discovery arguments.  The Plaintiff was a corporation seeking damages in the hundreds of thousands of dollars, plus punitive damages and attorneys fees. Indep. Mktg. Group., at *8.

The Court observed the Plaintiffs production methodology included identifying the responsive ESI on their computer, printing it as paper and then scanning the paper as a non-searchable PDF.  Indep. Mktg. Group., at *4-5.

The Court explained that the Plaintiff did not produce the ESI as it was ordinarily maintained by printing the ESI as paper and then scanning the documents as non-searchable PDF’s.  Indep. Mktg. Group., at *5.  Additionally, the ESI was not produced in a reasonably useable form, because it was non-searchable.  Id.

The Court rejected Plaintiff’s undue burden and cost arguments, noting that there is a presumption that the producing party incurs its own production costs.  Moreover, the Plaintiff never argued the data was not reasonably accessible, which would have been undercut by the fact they could search their computer for responsive ESI that was printed. Indep. Mktg. Group., at *6-7.

The Court ultimately granted to motion to compel, requiring the production to be re-produced in a reasonably useable form and denying an award of attorneys’ fees.

Bow Tie Thoughts

The Federal Rules of Civil Procedure and corresponding case law are abundantly clear that you cannot degrade searchable files.  Printing ESI and then scanning the paper as non-searchable PDF’s is simply not permitted by the discovery rules.

The other issue parties can end up in trouble over is arguing the cost of eDiscovery being unduly burdensome.  In a case worth hundreds of thousands of dollars, where the ESI is reasonably accessible, it is difficult to argue a production cost of $10,000 to be unduly burdensome.  It is more likely a party would spend a significant amount of money in motion practice, with the end result being the same discovery bill if the party simply produced the information correctly the first time.

Smile for the Discovery Production

In a dispute between a photographer and an educational textbook publisher, the Plaintiff sough the production of a definition list to the Defendants’ database abbreviations.  Bean v. John Wiley & Sons, 2012 U.S. Dist. LEXIS 4900, 1-3 (D. Ariz. Jan. 17, 2012).

The Defendants’ sales, printing and distribution database was originally produced as screenshots and then as an Excel file.  Bean, at *1-2.

The Excel file column headings contained many alphanumeric abbreviations, such as “LME4” and “VG Enc PAG.”  Bean, at *2.

After reviewing abbreviations reminiscent of a lens focal length formula, the Plaintiff brought a motion to compel the Defendants to produce a “key” to the abbreviations.  Bean, at *2.

The Defendants refused, arguing that the deposition testimony covered the abbreviations and that they did not have to create a document for the Plaintiffs.   Bean, at *2.

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.” Bean, at *2, citing Fed. R. Civ. P. 34(a)(1)(A).

The Court explained a producing party has the burden of translating the ESI into a reasonably useable form.  Bean, at *2.

While the Excel spreadsheets were “generally” in a reasonably useable form, the “defendant’s use of cryptic abbreviations without definition renders these portions of the spreadsheets meaningless, just as if the data had been produced in code or in a non-readable format.”  Bean, at *3.

The Court disagreed with the proposition that the Defendant had already defined the abbreviations in deposition testimony, because it was the Defendants’ “burden to translate ESI into a useful format.”  Bean, at *3.

The Court reasoned the Plaintiff had requested the definitions of specific abbreviations.  As such, the Court found that requiring the Defendants “to supply definitions already in its possession is not overly burdensome compared to requiring plaintiff to sift through pages of documents.”  Bean, at *3.

Bow Tie Thoughts

It is novel argument, but logical a one, that “translation into a reasonable useable form,” could include producing a definition list of abbreviations.  Given how “text speak” could include a litany of shorthand abbreviations such as LOL (Laugh out Loud), the production of such a list might be necessary so “cryptic abbreviations” would not render a production meaningless.

There are valid arguments that such abbreviations could be defined in deposition or by special interrogatory.  However, requiring a party to conduct additional discovery to define abbreviations within the producing party’s control arguably goes against Federal Rule of Civil Procedure Rule 1, requiring the Federal Rules of Civil Procedure to be “construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”

Arguing $2,630 is Undue Burden to Search ESI

A Defendant refused to produce ESI claiming the estimated $2,630.00 to search the data was unduly burdensome under Federal Rule of Civil Procedure Rules 26(b)(2)(C)(iii) and 26(b)(2)(B).  Hudson v. AIH Receivable Mgmt. Servs., 2011 U.S. Dist. LEXIS 39993 (D. Kan. Apr. 13, 2011).

The Defendant was a company of 13 people that represented it was not doing well financially. Hudson, at *2.

The Defendant’s purported undue burden was based on an estimated 24 hours for a technician at $95 an hour to review the ESI, plus $350 to purchase software to read the archived data. Hudson, at *2.

Rule Summary

A Court will limit discovery pursuant to Federal Rule of Civil Procedure Rule 26(b)(2)(C)(iii) if:

[T]he expense of the proposed production outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

Hudson, at *2.

Additionally, a court may limited discovery of ESI that is “not reasonably accessible because of undue burden of cost.”  Hudson, at *2, citing Federal Rule of Civil Procedure Rule 26(b)(2)(B).

A Court may order cost-shifting for producing discovery under the following factors:

(1) The specificity of the discovery request,

(2) The quantity of information available from other and more easily accessed sources,

(3) The failure to produce relevant information that seems likely to have existed,

(4) The likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources,

(5) Predictions as to the importance and usefulness of the further information,

(6) The importance of issues at stake in the litigation and

(7) The parties’ resources.

Hudson, at *3-4, citing Fed.R.Civ.P. 26(b)(2), advisory committee’s notes (2006); see also Semsroth v. City of Wichita, 239 F.R.D. 630 (D. Kan. 2006).

The Court’s Analysis 

The Court quickly dismissed the idea of cost-shifting, citing that this element of the litigation was “not disproportionate to the importance of much of the discovery in resolving the issues.”  Hudson, at *4.

The Court reviewed each discovery request to determine whether they were unduly burdensome or costly. Hudson, at *4.

The ESI at issue centered on email, with the parties having reached an agreement on “documents” and the Plaintiff withdrawing their request for Internet search history.  Hudson, at *4-5.

The email was stored in two formats: one format which could be viewed in an available email application and the other a data storage format requiring special software.  Hudson, at *5.

The Court gave the parties two options:

Option 1:

1)    Defendant could produce unedited, unreviewed, and unredacted data files of all data in its possession, together with the name of the software needed to read the storage data.

2)    Plaintiff could then purchase the software and conduct her own searches.

Option 2:

Due to concerns of over producing unresponsive or privileged information, the Defendants would bear the cost of searching the data and purchasing any software.

Hudson, at *5.

The Court further ordered the parties to meet and confer on search terms so the email searched was limited to specific topics. Hudson, at *6.

The Court reviewed each discovery request.  One request called for a list of ESI that “mentioned” the Plaintiff in any “diary, notes and calendar-type” files.  Hudson, at *7.

The Court held the Defendants did not adequately support their objections that the ESI was overly broad or unduly burdensome and overruled their objection.  Hudson, at *7.

Another objection against a request for ESI that “pertain[ed] to or reflect[ed] any statements of any person or witness pertaining to any claim or allegation made by the plaintiff in this lawsuit,” was unduly burdensome and overly broad was also overruled, because the objection were not sufficiently supported. Hudson, at *8.

An objection to a request that purportedly sought information protected by the attorney-client privileged was found to have the privilege waived and the objection overruled, because the Defendants did not produce a privilege log.  Hudson, at *8.

The Court did limit another request for email by date range, narrowed to email that were either sent or received by the Plaintiff, identified her by name, and other specifically named individuals on specific subject matter.  Hudson, at *11.

In summation, while several requests were limited or denied in part, the Defendant still had to search and produce electronically stored information.

Bow Tie Thoughts

As a preliminary matter, most service providers would not think an estimate of $2,600 for e-Discovery services is “unduly burdensome.”

There is reportedly one e-Discovery service provider that does not take any project for under $5,000.  However, this “nothing under $5,000” view is one many service providers think is very shortsighted and jeopardizes relationships with clients.

The tone of the opinion gives the impression the Defendant was attempting to conduct their own e-Discovery work.   These situations can result in using a non-e-Discovery tool for unintended purposes, when software designed for data reduction and identification could allow the party to meet their discovery production obligations.

For example, the “early case assessment” (ECA) products on the market represent they effectively allow a party to identify responsive, non-responsive or privileged ESI for production to an opposing party (Note, always ask about the defensibility of any software you consider using).

While a party might argue such an engagement with a service provider to use an ECA product is “expensive,” so is motion practice that still results with a court order to review, identify and produce electronically stored information.

It is arguably more cost effective to cut out the middle man (in such a dispute, the Court, legal research and drafting motions) and leverage the skills of a service provider with products like Nuix, OcraTech, Access Data or Lexis to identify ESI for production.  Moreover, the reporting features of these products enable a lawyer to generate the information needed for creating a privilege log for ESI that is confidential.

Motion practice is unavoidable if an opposing party is completely unreasonable. However, some disputes can be avoided, saving both time and money, if e-Discovery technology is leveraged to identify, reduce and produce responsive electronically stored information.

Disclosure: I have friends and professional relations with all of the companies named above.  

Form of Production: (Almost) Anyway You Want It

A Plaintiff in an age discrimination case requested ESI be produced in native format.  Linnebur v. United Tel. Ass’n, 2011 U.S. Dist. LEXIS 88456 (D. Kan. Aug. 10, 2011).

The Defendants did not assert any objections, but produced the responsive ESI as PDF’s.  Linnebur, at 3.

The ESI at issue included company organization charts, email, payroll and work performance evaluations.  Linnebur, at 4.

As the Court noted, Federal Rule of Civil Procedure Rule 34 allows a requesting party to state the form of production in their request.  Linnebur, at *5, citing Fed. R. Civ. P. 34(b).

If the ESI is not reasonably accessible because of undue burden or cost, the producing party demonstrate any undue burden.  Linnebur, at *5-6, citing Fed. R. Civ. P. 26(b)(2)(B).

The Defendants argued the PDF production was sufficient.  Moreover, they argued it was the Plaintiff’s burden to show why they needed the native files. Linnebur, at *6.

As a preliminary matter, the Plaintiff argued that the timing of her being fired was a key issue in her lawsuit.  Linnebur, at *6-7.  The metadata in the discovery was vital to showing when ESI was created, who created it and the file’s history.  Id. This information was not in the PDF production. Id.

The Court took the Defendant to task on their position it was the Plaintiff’s burden to show why native files were needed:

Moreover, the plain language of Rule 26(b) imposes the burden on “the party from whom discovery is sought” to “show the information is not reasonably accessible because of undue burden or cost.” Defendant makes no such showing. Accordingly, Plaintiff’s motion to compel is granted with respect to the requested ESI.

Linnebur, at *7.

Bow Tie Law

There are Federal litigants across the United States that take the point of view they do not need to produce requested native files.  The plain language of the Federal Rules of Civil Procedure are squarely against this false proposition.

If a party requests ESI be produced in native file format, it is the producing party’s duty to object and demonstrate why such a production is unduly burdensome.  The producing party might argue the costs involved or whether the ESI needs to be converted to a static image for redactions. However, producing in native file format has a lower processing costs then converting to a non-searchable image.

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.