Let’s Not Print Social Media For Productions

Here are two tips on social media discovery:

Tip One: Get an expert who knows how to collect the electronically stored information on social media.

Tip Two: Downloading a Facebook profile, printing it, and conducting document review for redactions is not the best way to produce social media.

SocialMediaExamples_iStock

The Defendants in Stallings v. City of Johnston City, requested the Plaintiff produce the following social media:

Each and every social media posting by Stallings from 2011 to the present concerning her employment at Johnston City, allegations of wrongdoing against her, her suspension or termination, the investigation into missing money or wrongdoing in the Water Department, her lawsuit, her emotional or physical well-being, or any other matter identified in her Amended Complaint. This request includes all postings made by Stallings at any time on a Facebook account, Twitter, Instagram, or any other social media site.

Stallings v. City of Johnston City, 2014 U.S. Dist. LEXIS 68566, at *7 (S.D. Ill. May 19, 2014).

The Plaintiff stated that Facebook only allows for a download of data in its entirety. As such, the Plaintiff’s attorney and paralegal spent a week printing and redacting the 500 pages of the Plaintiff’s Facebook account. Stallings, at *7-8.

The Court was not thrilled with the Plaintiff’s claimed technological hardships. The first Court ordered the Plaintiff to produce the un-redacted pages of the Facebook profile, then to produce the entire un-redacted file from 2007 to present day. Id.

The Plaintiff did not identify with whom she had relevant discussions with on Facebook or whether any privileged attached to those conversations. Moreover, the Plaintiff argued that she had conversations with minors on Facebook, but not whether any of those discussions were relevant to the lawsuit. Stallings, at *8.

The Court stated it was clear that the Plaintiff had relevant conversations on Facebook about the litigation. Id. Moreover, the Court recognized that the communications could have admissions against interest and impeachment value. As such, the Plaintiff had to provide the names and residences of the individuals she communicated with on Facebook. Stallings, at *8-9.

The Court ultimately ordered the Plaintiff to produce a redacted hard copy of all relevant Facebook pages from 2011 to the present. The Plaintiff also had to provide defendants with the names and towns of residence of the individuals with whom the Plaintiff had relevant conversations. The Court defined the relevant Facebook pages as those containing statements about this case or the litigation, including discussions of her physical or mental health. The Plaintiff did not have to provide the names and location of minors without a Court order. Stallings, at *9-10.

Bow Tie Thoughts

I thought the requesting party did a good job with their request, because it sought what was relevant to the case, not a social media fishing expedition.

This case highlights the challenges lawyers have in not retaining experts to perform collections. While not directly stated, it seemed the Plaintiff’s attorney was trying to collect the Facebook profile through the download option without an expert and then conduct a manual review. I would encourage a law firm client to try a different approach.

There are products on the market that can be used to collect social media profiles. Some products can capture the data directly, search it, tag it, and produce it. X1 Social Discovery is one such product, but there are other product solutions as well. One of these tools could have made situations like this case much easier to litigation. I would encourage lawyers to look at their different options and find a partner who could assist them. No one should have to print entire social media profiles with the technology we have today.

Lessons From Drafting Overly Broad Requests

Paint_BrushesDrafting discovery is an art. While painting in oils or pastels is certainly more colorful than drafting requests in Times New Roman or Ariel, both require thought. And like any masterpiece, drafting a request for production can have its challenges.

A Requesting Party demanded an opposing party produce “[a]ll email and text messages sent or received on Mayo email and text messaging accounts.”

The Magistrate Judge found the request to be overly broad.

However, the Producing Party had produced responsive discovery with redactions, thus the Requesting Party challenged the overbroad ruling as unwarranted and moot. Elkharwily v. Mayo Holding Co., 2014 U.S. Dist. LEXIS 53890, 8-10 (D. Minn. Apr. 18, 2014).

The Producing Party countered that discovery produced with redactions and claims of privilege were subject to the future consideration of the Magistrate Judge. Id.

The Court stated that the Magistrate Judge had “expressly excluded from his order any determination regarding redactions or assertions of privilege, reserving consideration of those topics. As a result, notwithstanding the magistrate judge’s conclusion of overbreadth, it appears that Elkharwily has no actual objection to a ruling by the magistrate judge regarding Requests for Production 1 or 2.” Id. 

The Requesting Party also challenged an overbroad ruling for a request for production of, “[a]ll documents, notes, communications, emails and text messages relating to or to any of the claims or defenses in this action prepared, sent or received by [various entities, departments and individuals].” Elkharwily, at *9-10.

The Producing Party stated that they had produced all responsive discovery, as such, the Court found there was not an objection to the Magistrate Judge’s ruling. Elkharwily, at *10.

Bow Tie Thoughts

Reviewing the requests for production and challenging the objections make me think of two different issues: drafting a narrowly tailored request and being able to prove a production was inadequate.

As to the first issue, a request for production should include more than identifying the sender and all communications. That could be overly broad on its face, given the number of emails and texts sent in a day. Attorneys are well served to ask for specific communications between individuals, date ranges, and on specific subjects. The trick is not having the request become too narrow, but you cannot simply ask for everything, because you might actually get everything. That could make document review a nightmarish quagmire, because you actually got what you asked for.

The second issue requires a different strategy. If you think a production is inadequate, because there “should be more” emails or text messages, you have to prove it. This is not a metaphysical discussion of whether something exists or not, but you need some evidence of production gaps. This can include missing files that the requesting party has that should have been produced (such as part of an email chain), if not outright days or weeks of missing email. If there is such a production gap, a party can demonstrate by affidavit that the production is not complete.

Social Media Request for Production That Got It Right

Requesting social media relevant to a lawsuit should be done as standard operating procedure now. However, some attorney have a difficult time with narrowing their requests beyond, “Produce your Facebook profile.” Such fishing expeditions are summarily denied. See, Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387 ( E.D. Mich. 2012), Salvato v. Miley, 2013 U.S. Dist. LEXIS 81784, 3-4 (D. Fla. 2013) and Potts v. Dollar Tree Stores, Inc., 2013 U.S. Dist. LEXIS 38795, at *6-7(M.D. Tenn. Mar. 20, 2013).

Here is a case where the requesting party got it right. The Court ordered the producing party to respond to the following request for production:

“[A]ny notes, diaries, logs, journals, letters, electronic mail, text messages, calendars, Facebook postings, tweets, or other social media messages that relate or refer to your employment with the GDRTA, your alleged serious health condition, or your activities on days when you requested FMLA leave.

Wilkinson v. Greater Dayton Reg’l Transit Auth., 2014 U.S. Dist. LEXIS 64522, 9 (S.D. Ohio May 9, 2014).

The Court stated that the request sought information about heath conditions that gave rise to the FMLA requests. Id.

In my opinion, the request was narrowly tailored for the issues that are the subject of the lawsuit. This is the sort of thought attorneys need to exercise when requesting social media. A party cannot simply ask for the opposing side’s password to Tumblr or Instagram. A request has to be for information relevant to the lawsuit, not a fishing trip across the adverse party’s Facebook Wall for whose status updates they “liked.”

 

Don’t Argue Gmail is Not Reasonably Accessible

Can a producing party argue for cost-shifting to the defendant based on proportionality for the production of work-related emails on a plaintiff’s gmail account? Owens v. Clear Wireless LLC, 2014 U.S. Dist. LEXIS 26698, 4-6 (D. Minn. Mar. 3, 2014).

Short answer is no, because the emails are not inaccessible to the producing party.

The general rule in over the cost of producing discovery falls on the producing party. Owens, at *4, citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358, 98 S. Ct. 2380, 57 L. Ed. 2d 253 (1978).

Discovery can be limited if “the burden or expense of the proposed discovery 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.” Owens, at *5, citing Fed. R. Civ. P. 26(b)(2)(C)(iii). Cost-shifting can be imposed if the data sought by the producing party is not reasonably accessible. Id, citing Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 283-84 (S.D.N.Y. 2003).

The Plaintiff’s emails in a gmail account were accessible by the Plaintiff. Data must be not reasonably accessible in order for any cost-shifting to be considered. Owens, at *6.

Bow Tie Thoughts 

Email messages stored in a Cloud, whether it is Yahoo, Gmail, or some other service provider, are not “not reasonably accessible” to the producing party.

Computer forensic experts have determined multiple ways to capture cloud-based email. This can include having the email messages downloaded to a computer in Outlook, to applications that preserve the email from the cloud. Just because a lawyer needs to retain someone to perform the work, does not make the email “not reasonably accessible.”

Scanning Paper Makes the Production ESI And Not a Document

Anderson Living Trust v. WPX Energy Prod., LLC, 2014 U.S. Dist. LEXIS 31025, 3-4 (D.N.M. Mar. 6, 2014), is a detailed review of production requirements under Federal Rule of Civil Procedure Rule 34(b)(2)(E). The crux of the case centered on whether scanning paper documents to PDF’s made the discovery “electronically stored information.” Moreover, if the paper discovery was now ESI under the Rules, did the producing party have to organize the production under the 34(b)(2)(E)(i)?

The Court found that the parties agreement to produce paper as PDF’s made the discovery ESI. As such, the organization requirement under 34(b)(2)(E)(i) did NOT apply to the former paper production. Rule 34(b)(2)(E)(ii) controlled instead, which requires ESI productions be in the form it is ordinarily maintained or in a reasonable useable form.


This case highlights the train wreck that can happen from fighting over the form of production. Moreover, the fact the Court found the paper was transmuted to ESI by scanning might be technically correct, but is problematic. Moreover, the case even included a discussion of whether reviewing ESI in a review platform for privileged eliminated the ability to produce ESI as in “the usual course of business,” because it had been in a review platform.

Scanned paper does not OCR 100%. It runs the risk of not being fully searchable. This will depend on the age of the paper, quality of the text on the pages, and the effectiveness of the OCR technology. Luckily, much of the OCR technology today is very good with high accuracy rates. However, OCR in litigation does yet scan handwriting. As such, one would expect scans of non-text paper to require some form of production labeling.

It costs an eDiscovery service provider the same amount to scan a piece of paper for being a PDF or TIFF as it does for printing. However, the printing costs can add more to the total cost than simply OCR-ing a scanned file (I have seen as much as 10 cents a page cost increase).

If the requesting party wants to be difficult, they can request both paper be produced as paper to drive up the production cost for the producing party AND demand the production be organized under 34(b)(2)(E)(i). This would fly in the face of Federal Rule of Civil Procedure Rule 1 to conduct cases in a “just, speedy, and inexpensive determination” of every action when scanned paper can be produced as an image with searchable tect. Furthermore, the requesting party would now have boxes of paper to review, driving up their own billable hours.

Review technology allows anyone conducting document review to “tag” files for production that correspond to discovery requests. Unfortunately, many attorneys do not do this, either based on time constraints, the lack of interest in organizing a production for the opposing party, or they do not know how to.

Personally, I prefer conducting document review to organize what files are responsive to specific requests. Moreover, the time it takes to tag “produce” could be done just as easily as clicking “RFP1” or “RFP4” as tagging options. This makes it easier to perform quality assurance testing and the basic need to look up what files are being produced to a specific request.

 

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.

Sommelier

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.

SpilledRedWine

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.