Please Don’t Bates Stamp eDiscovery

This case is my eDiscovery nightmare.

Worse than a clown with snakes.

Let’s review what happened.

The case involved numerous allegations of discovery wrongdoing against the Plaintiff.

The Defendants brought a motion for “discovery abuses intended to harass defendants, cause unnecessary delay, and needlessly increase the cost of litigation.”

The Defendants claimed they had spent $51,122 in legal fees and expenses related to the Plaintiffs’ “document dump.”

The motion was granted and denied in part. Branhaven, LLC v. Beeftek, Inc., 2013 U.S. Dist. LEXIS 13364, 13-14, 22 (D. Md. Jan. 4, 2013).

It Started Like Any Other eDiscovery Dispute…

The litigation had the “traditional” eDiscovery dispute with the Plaintiffs not producing email ESI, because they had not accessed the information, and other significant production delays. As the rather hot bench explained:

Plaintiff’s delay in addressing the lack of access to these email servers is inexcusable. There is no more obvious and critical source of information in the 21st century than a company’s email accounts.  Plaintiff’s counsel’s failure to identify and produce this discovery in a timely fashion and in an acceptable form and manner while suggesting — if not misleading defendants — that it had identified responsive documents is sanctionable.

Branhaven, at *13-14.

Things continued to be problematic for the Plaintiffs, who claimed ESI from laptops would be produced in what the Court described as “blithely” assertions that discovery would be produced “at a mutually convenient time.” In reality, the subject laptops had not been sent to the client (presumedly to for review, raising the issue why hadn’t the hard drives been imaged), until a new associate attorney found them. Branhaven, at *14. Their conduct ultimately resulted in sanctions in the form of fees and costs.

…and then Came the PDFs and Whether the ESI Should Have Been Produced as TIFFs with Bates Numbers to be in a Reasonably Useable Form

The Plaintiffs produced their ESI as PDF’s. The Defendants challenged the production, because the production was untimely and not in TIFF format with Bates Numbers on every page. Branhaven, at *14-15.

The nightmare of a TIFF over a PDF production with Bates Stamps included the Plaintiffs arguing that the discovery request did not request Bates Stamps; nor is it an express requirement in the Federal Rules of Civil Procedure, case law or the local discovery guidelines. Branhaven, at *16.

Moreover, the Protocol for Discovery of Electronically Stored Information (Local Rules of District of Maryland) which states that TIFF is the preferred format is only advisory. The Court called this a “weak defense.” Id.

The Court stated the following on the production:

Moreover, as defendants point out, Fed. R. Civ. P. 34(b)(2)(E)(ii) provides two options regarding the form in which a party may produce documents and plaintiff did not satisfy either. The July 20 production was not in a form “in which it is ordinarily maintained” or in “a reasonably usable form” — as Mr. McNeil showed (especially considering the lateness of the production with depositions looming in a few days). The Advisory Committee Notes to Rule 34 warn that: “[a] party that responds to a discovery request by simply producing electronically stored information in a form of its choice, without identifying that form in advance of the production in the response required by Rule 34(b) runs the risk that the requesting party can show that the produced form is not reasonably usable . . .” (emphasis added). That is precisely what happened here. Branhaven did not advise of the intended form of its production in its March response. Defendant was blindsided by the volume of the documents (since the prior productions consisted of 388 pages). Moreover, defendants had every reason to think that the documents would be completely Bates-stamped, as prior productions were and further defendants had no reason to think that this production would be so incredibly voluminous, as to require special arrangements and explicit agreement.

Branhaven, at *16-17.

The crux of production issue was whether or not the PDF’s were in a reasonably useable form. The Court held they were not, because of the lack of Bates Numbers and the fact they were not in TIFF format. Branhaven, at *17. Additionally, because of the production, the Court awarded the Defendants “the reasonable litigation support costs involved in receiving and processing” the document production. Branhaven, at *19.

Bow Tie Thoughts

Why is this a case a nightmare for me? Because it applies a paper model of discovery to electronically stored information, requiring a conversion of ESI into a TIFF with Bates Stamps (a conversion which can triple processing costs with some service providers). What is even stranger about it is the form of production battle centered on PDFs vs TIFF, both of which are static images. One difference is a PDF can be either non-searchable (thus like a TIFF) or searchable (thus more like a native file).

Demanding electronically stored information be converted to a static image with Bates Numbers is right up there with demanding MP3s be reversed burned to 8 Track. A party should have a good reason to take a native file, that is fully searchable and strip its searchable features. This truly makes it like a piece of paper, rendering the review tools that can do everything from sorting data in chronological order to technology assisted review be useless. It is like trying to fuel a hybrid car with coal.

Removing ESI’s searchable features also violate the Federal Rules of Civil Procedure and a substantial body of case law.

Moreover, claiming there is a functional difference between PDF vs TIFF as static images is like fighting over VHS vs Beta. The problem with such fights is we are in the 21^st Century and not the 1970s. It is almost like arguing Beta is better than Video on Demand, because the issue is not the form, but whether you can analyze the content.

What drives these all too frequent fights? It is attorneys who want pieces of paper to have Bates Stamps. This worked up until the 1990s, but we now live in a world where the content on a smartphone can fill the first floor of a library. Data needs to be reviewed as data for there to be any chance to meaningfully understand its content. Moreover, as to the Bates Numbering to organize the ESI issue, native files can have a “control number” that is the functional equivalent of a Bates Number for management in a review platform. If there is still a concern about whether a file has been changed, parties can use MD5 hash values instead, to ensure the ESI has not been modified.

Finally, I believe forward thinking local rules are extremely helpful for litigants. However, as technology changes, these rules need to be updated to incorporate how computer-assisted review can cut costs, advances in processing or even the cost-effectiveness of remote depositions. What was forward thinking in 2006 can be outdated in 2013.

In the end, converting standard ESI like email to TIFFs to brand Bates Numbers should give lawyers nightmares of high processing costs, slow manual review and unhappy clients. It should only be done when the native file itself is not in a reasonably useable form, thus the static image is the only reasonably useable form.

No Expert Testimony, No Motion to Compel

A court should be hesitant to resolve issues that demand technical expertise.

Magistrate Judge James C Francis IV

In a case with dueling motions to compel, the parties disputed the adequacy of search terms. Magistrate Judge James C Francis IV wrote a profoundly important warning to attorneys and judges on search terms: A court should be hesitant to resolve issues that demand technical expertise. Assured Guar. Mun. Corp. v. UBS Real Estate Sec. Inc., 2012 U.S. Dist. LEXIS 167981, at *11 (S.D.N.Y. Nov. 21, 2012).

Neither of the parties submitted to the Court expert affidavits on the adequacy of the search terms. Judge Francis stated that expert testimony was “necessary for [him] to offer an opinion as to the most efficient, search protocol.” Assured Guar. Mun. Corp., at *12.

The Court noted that search term adequacy “is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics. Assured Guar. Mun. Corp., at *11-12, citing George L. Paul & Jason R. Baron, “Information Inflation: Can the Legal System Adapt?”, 13 Rich. J.L. & Tech. 10 (2007).

The Court also cited to the archangel of search term cases to highlight the difficulty in analyzing search term efficiency:

…for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread.

Assured Guar. Mun. Corp., at *12, citing United States v. O’Keefe, 537 F. Supp. 2d 14, 24 (D.D.C. 2008).

The Court stated the parties had three options:

They can cooperate (along with their technical consultants) and attempt to agree on an appropriate set of search criteria;

They can refile a motion to compel, supported by expert testimony; Or,

They can request the appointment of a neutral consultant who will design a search strategy.

Assured Guar. Mun. Corp., at *12.

Bow Tie Thoughts

eDiscovery requires expert knowledge. It is extremely dangerous for courts and parties to engage in determining search terms without having at least one expert who understands what technology to apply to a case to help attorneys make the legal determination what is relevant; identify what is responsive to discovery requests; and determine what ESI is privileged.

There have been too many eDiscovery opinions this year that most likely did not have an eDiscovery consultant assisting either party. I am greatly concerned the recent case management orders that limited parties to five search terms per custodian was purely an arbitrary number and lacked any expert involvement in analyzing the data before any such motion practice.

This is as dangerous as an accountant telling a doctor what procedures they can use to treat an emergency room patient before any triage takes place. The accountant is in no position to know what is best for patient care.

If determining search terms efficiency is the work of angels, limiting search terms without consulting an expert is embracing the dark ages at best and malpractice at worse. Why risk limiting your ability to find what is relevant to your case? Why risk driving up discovery costs by making searching for ESI harder?

Conversely, would any attorney agree to limiting their legal research to the arbitrary number of 3 terms and prohibiting the consultation of a research attorney to “lower costs”? Most likely no.

The answer to controlling eDiscovery costs is not limiting the tools to find what is responsive, but the education of attorneys and judges in understanding how to conduct eDiscovery. Highlighting the need for eDiscovery education, one recent opinion had a judge hold that TIFF’s are a form of production “that is easily searchable for specific terms.” Johnson v. Allstate Ins. Co., 2012 U.S. Dist. LEXIS 148282 (S.D. Ill. Oct. 16, 2012).

Tagged Image File Format is not searchable. Parties convert ESI to TIFF’s (usually at any additional processing cost) to make the native files not searchable. A production with TIFF’s would require extracted text, substantive and/or embedded metadata, or the TIFF’s to have optical character recognition (OCR) to be in a reasonably useable form without searchable features denigrated. Saying TIFF’s are searchable is simply wrong.

Judge Francis was profoundly correct when he stated, “A court should be hesitant to resolve issues that demand technical expertise.” eDiscovery requires attorneys being competent to understand their client’s ESI, which should involve having enough education on eDiscovery to know when to bring in an expert for help; determining whether or not search terms are effective requires such expert assistance.

Too Many Cooks in eDiscovery

Also Posted on frank! The Nextpoint Blog

There are phrases a lawyer never wants to hear a judge say. One is your law firm “acted negligently in failing to comply with its discovery obligations.” Another is your client “acted willfully in failing to comply with its discovery obligations and assist its outside counsel to properly litigate this case in accordance with the Federal Rules of Civil Procedure and the Federal Rules of Evidence.”

Both phrases were stated in Coquina Invs. v. Rothstein. The facts have a Qualcomm-esq theme and highlight the need for project management like a fireball in the night. At a fundamental level, attorneys should not be afraid to ask their client questions about how they maintain their records. Moreover, trial counsel should never assume documents are only maintained as paper.

A lot of things went wrong in this case. The Court described that discovery was conducted in an “Inspector Clouseau-like fashion,” except there was nothing funny about it. Coquina Invs. v. Rothstein, 2012 U.S. Dist. LEXIS 108712, 4-5 (S.D. Fla. Aug. 3, 2012).

The Court stated the law firm (Law Firm 1) had over 200 attorneys working on the case, which included different attorneys handling the banking issues, document production, pretrial and trial practice. Id. 

The Court described the number of lawyers on the case as “too many cooks spoiling the broth.” Id.

The client also retained a second law firm (Law Firm 2). Law Firm 2 hired a consultant to perform work related to the case handled by Law Firm 1, which was not related to Law Firm 1. Id.

Not Now Cato!

The Plaintiff argued in their Fourth Motion for Sanctions that the Defendant altered a Due Diligence form to mislead the jury. Coquina Invs., at *5. While that is an excellent lineal attack, the facts were a lot more complicated.

A month after the Plaintiff’s filed their motion, the Defendant produce a document that the attorneys initially denied existed. Furthermore, Law Firm 1 filed a motion to withdraw certain statements and for the substitution of counsel (enter Law Firm 3). Coquina Invs., at *5.

Swine Form of Production

The major issues of the case focus on the form of production.

The Defendants produced ESI from a Lotus Notes database as a black and white static image. However, the native file had a red banner across the top of the file with the words “High Risk.” As a static image, “High Risk” appeared in black with a grey banner. Coquina Invs., at *12-13. At the evidentiary hearing, testing showed that printing the black and white TIFF’s made the header entirely black. Coquina Invs., at *14.  In short, a color TIFF was needed for the banner to remain visible.

The issue did not end with color TIFF’s. Even though the review database had the native files, one of the attorneys asked the client for a hard copy of the document at issue. The client directed her assistant to print the document and “identify any attachments in pen.” Coquina Invs., at *15.

The printed copies had several issues, such as “High Risk” being faint, but the formatting was altered so that the writing that ran horizontally across the top of the top of the document was compressed into a column running vertically down the page. Coquina Invs., at *15-16.

The “printed” file also lacked the embedded information that included the file’s archive and editing history. Coquina Invs., at *15-16. The Court described the difference between the printed file and the native file as “glaring.”  Coquina Invs. at *16.

The Court explained Law Firm 1 produced discovery directly to Plaintiff without the service provider’s assistance. Coquina Invs., at *17. With the document at issue, Law Firm 1 scanned the printed document and produced a PDF to the Plaintiff, instead of producing in native file format or as a color TIFF. Coquina Invs., at *18.

At a hearing opposing the Plaintiff’s motion to compel production of ESI as native files, in-house attorneys represented it was their practice to produce documents as they are kept in the normal course of business. Id. The in-house attorney assured the Magistrate Judge that a third-party vendor was conducting the production and that discovery would be produced as TIFF, searchable with 34 columns of metadata. Id.

Law Firm 1 thought the documents were maintained as hard copy documents in the ordinary course of business, thus why the firm produced the documents as PDF’s. Coquina Invs., at *18-19. One attorney testified that a senior associate confirmed to them that the documents were kept as hardcopies. Id.

As the court coldly stated: Obviously that information was incorrect. Coquina Invs.,  at *19.

Furthermore, the Court noted that Law Firm 1 did not have anyone contact their client on how the subject documents were ordinarily maintained (in Lotus Notes) or run any searches in their review software. Id.

The Curse of the Native Files

The Court held Law Firm 1 “acted negligently in failing to produce the CDD form in a manner that preserved the document’s qualities. It is clear that, to preserve all its original qualities, the CDD form should have been produced in native format or color tiff.”  Coquina Invs., at *19.

The Court’s stated the following on the production mistakes:

Evans testified that [Law Firm 1] produced this document in a separate pdf production without [Service Provider’s] involvement because she believed TD Bank kept the document in hardcopy in its ordinary course of business. This explanation is hard to believe. Upon review of the printout, [Law Firm 1] or in-house counsel should have immediately realized, at a minimum, that some information was lost due to the formatting errors, which are clearly visible on the face of the document. From looking at the formatting errors on the face of the document it is clear that it existed originally in some sort of electronic format. That should have prompted questions about how [Defendant] kept the documents. Further, it is reasonable to infer that at least one [Law Firm 1] attorney saw the original, html color document during discovery on the [Service Provider] document review platform. That placed the attorneys on notice that the document existed on Lotus Notes in native format and was originally in color. Finally, it is clear from a review of the initial printout—which contained a faint and barely legible banner—that further printing or copying of the document would result in degradation of the document’s clarity or quality.

Coquina Invs., at *40-41.

The Court stated the following on the Defendant:

[Defendant] acted willfully in failing to rectify [Law Firm’s] error or allowing it to endure. [Defendant] hides behind [Law Firm’s] mistakes and points to Pinkus’s deposition testimony to wash its hands clean of any involvement in this production of documents. [Defendant] would have this Court believe that, except for Pinkus, none of its approximately fifteen in-house lawyers or its representatives who sat through trial had any idea what the critical documents in this case were supposed to look like, and therefore cannot be held responsible for not noticing that the CDD form contained blacked out headers and lacked archive and editing information during pretrial or trial proceedings. That explanation defies credulity. Having reviewed the evidence and made the appropriate credibility determinations, I do not accept that this was the case.

Coquina Invs., at *41-42.

Revenge of the Native Files

The Court held Law Firm 1 and the Defendant were to pay the Plaintiff’s attorney’s fees and costs associated with bringing and litigating the various motions. Coquina Invs., at *49.

Son of Sanctions

The Court did not issue any sanctions against the individual attorneys, because there was no evidence any of them acted in bad faith or willfully. Coquina Invs., at *50-51.

However, the following statement by the Court is damning:

The individual [Law Firm 1] attorneys’ handling of this case left much to be desired. The document review and production appears to have been conducted in an almost ad hoc manner. The attorneys failed to adequately conduct document searches in response to Coquina’s counsel’s requests and this Court’s inquiries. The attorneys produced key documents on the eve of trial, and in the midst of trial, because of failures in their document search and production procedures. Although I recognize that the attorneys were dealing with a high volume of documents, the amount of production errors that occurred throughout these proceedings were simply incredible, especially coming from lawyers in a well regarded firm like [Law Firm 1], which in many ways earns its reputation from being able to litigate large, complex actions.

Coquina Invs., at *50.

Bow Tie Thoughts

Winston Churchill stated “Why, you may take the most gallant sailor, the most intrepid airman or the most audacious soldier, put them at a table together – what do you get? The sum of their fears.”

The same description applies to Coquina Invs. v. Rothstein. This case should terrify attorneys, eDiscovery service providers and corporate clients highlighting everything that can go wrong in the search and production of eDiscovery in a complex case.

There has been a fear since the first Qualcomm opinion of clients controlling what information trial counsel can review. This can negatively impact a lawyer’s ethical duty to be truthful to a Court if a client does not inform their attorneys about relevant information. Moreover, if there is information the client knows to be wrong, that needs to be communicated immediately to their attorneys.

eDiscovery requires project management in order for attorneys to completely practice law. Attorneys, their clients and any service providers must have clearly defined responsibilities, open communications, and a workflow that everyone involved follows consistently. Without effective project management, the risk of an eDiscovery Chernobyl grows exponentially.

The “form of production” still haunts many attorneys, with some outright expressing fear of producing ESI in native file format. While there are valid reasons to produce ESI as static images for redactions, I have been an advocate of native file productions for years.

Attorneys must understand the data they are reviewing, issues with production formats and know the risks associated with producing as static images. Many of the issues in this case could have been avoided with producing in native files or at least color static images. Moreover, it is highly unlikely a company would only maintain ESI as paper, given the cost of printing, storage or simply how people work in the 21^st Century. However, those are excellent questions to ask a client at the beginning of representation.

Adventures in Statutory Construction of FRCP Rule 34(b)(2)(E)

In a multi-party complex case, the parties agreed to the production of electronically stored information as TIFFs or JPEGs with fields of information that did not reflect the metadata of the native files.  The original production fields included: beginning bates number, ending bates number, page count, CD volume name, producing party, and produced date.  The agreement was codified as a case management order. City of Colton v. Am. Promotional Events, Inc., 2011 U.S. Dist. LEXIS 126848, 47-48 (C.D. Cal. Oct. 13, 2011).

As the Court later commented on the production protocol, “the parties did not produce ESI in the manner in which it is kept in the usual course of business, which, at a minimum, would identify the provenance of the files and provide some context as to their meaning.” City of Colton, at *48.

One Defendant brought a motion to compel well into discovery, arguing the United States did not comply with Federal Rule of Civil Procedure Rule 34(b)(2)(E)(i). The Defendants claimed the United States was required to produce documents and ESI as they were kept in the usual course of business or organize and label the production to correspond to the Production Requests.  City of Colton, at *29-30.

The United States argued the case management order superseded the requirements of Rule 34(b).  City of Colton, at *30.  Furthermore, the United States argued that the production of electronically stored information was controlled by Federal Rule of Civil Procedure Rule 34(b)(2)(E)(ii), which requires ESI to be produced as it is ordinarily maintained or in a reasonably useable form.  City of Colton, at *30-31.

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

  (E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:

         (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;

         (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms;

USCS Fed Rules Civ Proc R 34

The Special Master assigned to the case first heard the dispute and concluded that the case management order did not exempt the parties from Federal Rule of Civil Procedure Rule 34’s requirements.

Moreover, the Special Master found Rule 34(b)(2)(E)(i) applies to electronically stored information as well as paper documents.  The United States was ordered to either re-produce its prior production in native file format with corresponding metadata or “categorize by Production Request the Bates numbers of all previously produced ESI.” City of Colton, at *31-32.

Magistrate Judge Suzanne Segal agreed with the Special Master’s analysis that found Rule 34(b)(2)(E)(i) applies to electronically stored information as well as paper documents.

As a preliminary matter, the Magistrate Judge did not find any intent by the Judge who issued the case management order to deprive the parties their rights under the Federal Rules of Civil Procedure to ensure a production was organized in a “satisfactory way.”  City of Colton, at *33-36.

The Court engaged in a highly detailed review of the Advisory Committee Notes to Federal Rule of Civil Procedure Rule 34(b)(2)(E).  The Court recounted that the Advisory Committee specifically recognized that the term “document” encompassed ESI as a general rule:

“[A] Rule 34 request for production of ‘documents’ should be understood to encompass, and the response should include, electronically stored information unless discovery in the action has clearly distinguished between electronically stored information and ‘documents.’” Fed. R. Civ. P. Rule 34 advisory committee’s note (2006 Amendment, subdivision (a)). The notes specifically admonish that “[r]eferences to ‘documents’ appear[ing] in discovery rules that are not amended . . . should be interpreted to include electronically stored information as circumstances warrant.” Id.

City of Colton, at *39.

Furthermore, the Court also stated that ESI productions may not be “randomly organized:

Rule 34(b) provides that a party must produce documents as they are kept in the usual course of business or must organize and label them to correspond with the categories in the discovery request. The production of electronically stored information should be subject to comparable requirements to protect against deliberate or inadvertent production in ways that raise unnecessary obstacles for the requesting party. Rule 34(b) is amended to ensure similar protection for electronically stored information.” Id. (2006 Amendment, subdivision (b)).

City of Colton, at *40.

Based on the above, plus other case precedent, the Court found that Federal Rule of Civil Procedure Rule 34(b)(2)(E)(i) applied to ESI productions that they “must” be produced as they are kept in the usual course of business or “must” be labeled to correspond to the discovery request.  City of Colton, at *44.  As the Court explained:

While the specific information a producing party must provide when organizing a production “in the usual course of business” may vary in its details according to the type of document or file produced, it is clear that parties are entitled under the Federal Rules to rationally organized productions so that they may readily identify documents, including ESI, that are responsive to their production requests.

City of Colton, at *47.

The Court went on to state the following:

Unless and until the parties agree to amend their production protocol to include metadata fields sufficient to satisfy the requirement under Rule 34(b)(2)(E)(i) that documents, including ESI, be produced as they are kept in the usual course of business, the Rules require the United States (and Defendants) to organize and label their productions to correspond to the categories in the request.

City of Colton, at *48-49.

The Court addressed a practical issue in the case: there had been over 500 discovery requests from the Defendants.   The Court noted that identifying the ESI responsive to each request could be both “challenging” and “time-consuming.”  City of Colton, at *49.

The Defendants explained a “compromise” between the parties, where the United States would produce its ESI in native file format as a “substitute” for producing the ESI as it was kept in the usual course of business and instead of labeling its production to correspond to the Production Requests. City of Colton, at *49.

The Court accepted the compromise, stating:

“…because a simultaneous production in native format will provide Defendants with the metadata necessary to identify the provenance of each document and put it into its proper context, the United States may, at its option, provide Defendants with a copy of ESI in native format in any future production in lieu of labeling the production, in addition to producing ESI in TIFF or JPEG format to the Encore common repository pursuant to the parties’ current production protocol.”

City of Colton, at *49-50.

The sole footnote in the opinion stated the following on a blended production with metadata:

The Court strongly encourages the parties to consider the alternative of a new agreement concerning which metadata fields with TIFF/JPEG formats would provide identifying information sufficient to organize an ESI production that is usable for the receiving party and to amend their production protocol accordingly. Such an agreement would allow the United States to avoid the expense of producing ESI in both native and TIFF/JPEG formats, should it exercise that option, and would similarly allow Defendants to avoid the expense of reviewing ESI in two different formats and cross-referencing the productions. Furthermore, TIFF or JPEG productions with embedded metadata would enable Defendants to perform the various field searches they claim are necessary to make sense of the production and would be immediately available for use as exhibits without further processing. This would likely be more useful to Defendants than a report identifying the Production Requests to which documents are responsive with no contextualizing metadata.

City of Colton, at *50-51, fn 1.

Bow Tie Thoughts

I have been a Civil Procedure geek since my first day of law school. Magistrate Judge Suzanne Segal did an exceptional job reviewing past cases, the committee notes and applying practical knowledge on the issue of whether ESI is included in Federal Rule of Civil Procedure Rule 34(b)(2)(E)(i).

Many attorneys and judges have waded into the issue of whether Federal Rule of Civil Procedure Rule 34(b)(2)(E)(i) also applies to electronically stored information.  The plain language of the Rule says “documents.”  Moreover, Federal Rule of Civil Procedure Rule 34(b)(2)(E)(ii) specifically states “electronically stored information,” highlighting the difference between the two types of discoverable information.  Reading the two sections separately is something many lawyers have been doing since 2006.

On a fundamental level, a party producing any discovery, digital or paper, should not make a disorganized production.  As Judge Suzanne Segal stated, “…it is clear that parties are entitled under the Federal Rules to rationally organized productions so that they may readily identify documents, including ESI, that are responsive to their production requests.”  City of Colton, at *47.

For anyone who has done hours of document review, having the producing party label the production to correspond to the categories in the requests for production makes review (a little) less burdensome.

One way to accomplish labeling productions can be achieved in most of the review products on the market with issue coding.  While conducting review for ESI or documents responsive to a specific request, create issue tags at that time for the production requests.  For example, “Request for Production 7,” would be RFP007.  The three digit number system would allow for easier sorting in a data by discovery request.

When ESI is determined to be responsive to a request, code it accordingly with its request code.  At the time of production, add that field of information with the other extracted text/metadata fields to be produced.  Logging this information can increase organization for both the requesting and producing parties to a lawsuit.

The above is one way to help organize a production.  There are many other ways to use review tools and processing engines to generate information to label a production to comply with Rule 34(b)(2)(E)(i). Whatever is determined should be agreed upon before document review to increase efficiency.

Discovery wounds are sometimes self-inflicted.  Converting native files to static images and not producing the standard bibliographic extracted text and metadata can unintentionally drive up discovery review.  As a practical matter, everything that once was searchable has had that feature removed.  Additionally, fields of extracted text that could have populated a review database are now empty, waiting for a reviewing attorney to re-enter (at an hourly rate) what should have been produced as a matter of right.

The Court had a very good point in the one footnote about having two different production protocols in one case.  Virtually all of the review products on the market can handle blended productions of both ESI and static images such as TIFFs. Moreover, most processing software can produce discovery as native files and TIFFs if there is a need for a blended production.  However, this is far easier to do at the beginning of discovery, opposed trying to link a prior production in TIFF format to one with native files. While the technology can handle the different formats, the blended cross-productions having different fields of information can complicate review.

Bates Numbering ESI & Other Dates with a Recycle Bin

There are battles that do not make sense.  This is one of those cases.

In a civil dispute over fraudulent investments, the Plaintiff brought a motion to compel the Defendant to “Bates Label” electronically stored information in native file format, because the local Discovery Practices Handbook required Bates numbering of ESI.  U.S. Holdings, Inc. v. Suntrust Bank, 2011 U.S. Dist. LEXIS 29956, at 13-14 (S.D. Fla. Mar. 23, 2011).

The Defendant countered that to “Bates Label” their prior discovery produced in native file format, they would need to re-produce it as TIFF’s for branding of Bates Labels.  U.S. Holdings, Inc. at *13.  Moreover, the conversion costs would be between $16,000 to $75,000.  Id.

The Plaintiff’s counter argument was $16,000 was not overly expensive given the claims in the lawsuit (notice no mention of $75,000).  U.S. Holdings, Inc. at *13.

The Court stated that the local “Discovery Practices Handbook” required ESI to be produced with Bates Labels.  U.S. Holdings, Inc. at *13.

However, the Court denied the Plaintiff’s motion to compel, but ordered all future ESI productions to be Bates Labeled (and by default converted to a static image and therefore driving up the costs of discovery).  U.S. Holdings, Inc. at *13-14.

The Court explained that the Plaintiff did not counter the Defendant’s argument that Bates Labeling of ESI requires conversion of native files to TIFF or PDF.  Id.

The Court specifically held:

 

It appears that there was no objection to the production of ESI in native format; and, it appears that the vast majority of the ESI produced is not directly relevant to the claims and defenses in the case at bar. Therefore, at this stage of the litigation, and under the circumstances of this case, Defendants are not be required to Bates label the ESI already produced. However, any future production of ESI shall be Bates labeled.

U.S. Holdings, Inc. at *13-14.

 

Bow Tie Thoughts

Any default local “discovery handbook” requiring ESI to be converted to a static image for “Bates Labeling” needs a date with a recycle bin.

First, Federal Rule of Civil Procedure Rule 1 states the following, in relevant part:

These rules govern the procedure in all civil actions and proceedings in the United States district courts… They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.

(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July 1, 1966; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007.)

Any interpretation of a “Discovery Handbook” that can increase the cost of litigation $16,000 to $75,000 clearly violates the first rule of the Federal Rules of Civil Procedure that cases be “administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”

Second, Federal Rule of Civil Procedure Rule 34(b)(2)(E) states, in relevant part:

(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;

(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and

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

Jannx Med. Sys. v. Methodist Hosps., Inc., 2010 U.S. Dist. LEXIS 122574, at *8 (N.D. Ind. Nov. 17, 2010).

The above interpretation of the “Discovery Handbook” stands directly opposed to Federal Rule of Civil Procedure Rule 34(b)(2)(E).

The issue of “Bates Labeling” electronically stored information is understandable given the decades of legal assistants stamping paper documents.  However, that dogmatic practice has come to an end with electronically stored information.  Data cannot be forced into a paper model of production that 1) drives up the cost of discovery and 2) violates the Federal Rules of Civil Procedure.  Just imagine converting an Excel file with multiple tabs and fields to a static image solely for the sake of branding a number on it.

The issue of “Bates Labeling” is solved with 1) Assigning records control numbers and 2) Producing MD5 or SHA5 hash numbers as production fields with metadata.  These digital fingerprints are the 21^st Century way to address these issues, not compounding the cost of discovery by converting searchable native files to static images for the sake of branding them with a number.

Parties should discuss at a meet and confer how ESI should be produced.  There is nothing that should stop parties from determining that “Bates Labeling” of ESI is producing a hash value, reported to the Court in a joint statement, which can be codified as a court order at a Federal Rule of Civil Procedure Rule 16(b) conference.

The future is now.  We should not limit discovery “Bates numbers” to paper productions of the 1950s with the technology available today.

Cooking with Undue Burden & Metadata

In a business dispute, the Plaintiffs sought the production of email messages in native file format with metadata. 

The successor counsel to the Defendant claimed producing as TIFF’s would be sufficient, because the ESI was “no longer available in native format.” 

Moreover, the Defendant claimed producing metadata was “unnecessary and unduly burdensome.” Silicon Labs Integration, Inc. v. Melman, 2010 U.S. Dist. LEXIS 122871, at *5 (N.D. Cal. Nov. 3, 2010).

The Plaintiffs noted that the Defendant’s production was not in TIFF format, but PDF (note, the opinion did not stated if the PDF’s were searchable or static).  Silicon Labs Integration, Inc., at *5. 

The Court quickly reviewed Federal Rule of Civil Procedure Rule 34.  A producing party must “produce electronically stored information either in a form in which the data ordinarily is maintained or in a form that is reasonably usable.” Silicon Labs Integration, Inc., at *5, citing Fed. R. Civ. P. 34(b)(2)(E).

Rule 34 does not require the “production of metadata per se.” Silicon Labs Integration, Inc., at *5.   Additionally, courts are to guard against discovery requests that are “unreasonably cumulative,” or if the “burden or expense of the discovery sought outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake, and the importance of the discovery in resolving those issues.”  Silicon Labs Integration, Inc., at *6, citing Fed. R. Civ. P. 26(b)(2)(C)(i), (iii).

The Plaintiffs sought the email messages in native file format because there was concerned the emails were altered in production. Silicon Labs Integration, Inc., at *6. 

Further, the Plaintiffs were not calling for a forensic examination of the Defendant’s computer, but that he save the emails to a CD.  Silicon Labs Integration, Inc., at *6

The Defendant asserted that producing in native file format with metadata was unduly burdensome and expensive. However, the Defendant did not substantiate his claims with any declarations explaining why it was unduly burdensome or expensive.  Silicon Labs Integration, Inc., at *6.

The Court granted the Plaintiff’s motion with no further discussion of metadata fields to produce, other than a production due date.  Silicon Labs Integration, Inc., at *6.

Bow Tie Thoughts

Undue burden arguments must be specific and supported by affidavits beyond an attorney simply saying e-Discovery is “expensive.”  A party needs to show undue burden, which could include describing the computer system at issue, the type of data requested, what technology is needed to collect the ESI, time estimates to perform the collection & data processing and costs.

Technology now exists for targeted collections off computers based on key words, self-executing tools that a service provider prepares in advance for a client and self-collection programs that a client can use under the direction or an attorney or collection expert.  In short, collection technology to extract data is getting cheaper. 

A good practice point in requesting metadata is to state what metadata and fields you want to review in your request.  For example, a party may want “embedded metadata” and not “system metadata.”  Additionally, if a reviewing party requesting email may want fields such as “To,” “From,” “Data Sent,” “Date Received,” “Subject,” and “Body,” to name a few.  This is highly dependent on the nature of the lawsuit and requires more planning in drafting requests.

Don’t Argue Imaginary ESI Production Problems

In re NetBank, Inc., 2009 U.S. Dist. LEXIS 69031 (N.D. Ga. Aug. 7, 2009) has form of production arguments that illustrate the need to understand the processing abilities of electronically stored information applications and review in litigation support software. 

The Request for Production

In this class certification case, the Plaintiff sought production of electronically stored information in native format.  In re NetBank, Inc.,71-72. 

The Defendants refused, claiming the Federal Rules of Civil Procedure only require production in a reasonably useable form.  Thus, the Defendants were going to produce ESI as TIFFs with searchable OCR (Note, not extracted text, but optical character recognition, which is a process applied to the TIFF images to create searchable text, opposed to using the already searchable extracted metadata from ESI processing).  In re NetBank, Inc.,71. 

The Plaintiff argued against a TIFF production of the ESI, claiming that the reduced search features would cause an “inability” to:

(1) Determine the identity of the author and editors of the documents;

(2) Determine the creation and modification dates of the documents;

(3) Determine whether the documents have attachments; and

(4) Identify, sort, search or filter documents.

In re NetBank, Inc.,71-72. 

Descending into Obstructionism? 

The Defendant (Producing Party) argued they were only required to produce ESI in a reasonably useable form, not the form specified by the Plaintiff (Requesting Party).  In re NetBank, Inc.,72. 

The Producing Party’s arguments took a turn for the bizarre, stating native file review “allows the alteration of documents produced and creates difficulties in authenticating and tracking documents produced.”  In re NetBank, Inc.,72. 

This argument ignores all the products on the market that allow for reviewing native files, defensible collection practices, MD5 Hash Values for authentication, maintaining an authenticating file of the native files, or simply checking metadata for spoliation. 

The Defendants next argued that the production needed to be in TIFF format, because native files cannot be “Bates” labeled for pagination and that “[a]nother potential drawback with native format production is that one or more of the parties may lack access to the software program or application required to read the native file.”   In re NetBank, Inc.,72.

The Defendants’ final proposal was to perform optical character recognition on 16,483 of the 17,958 documents, plus produce spreadsheets as native files.  In re NetBank, Inc., 72-73. 

There is one giant problem with this logic: Native files are already searchable.  In the processing of ESI, the searchable text can be extracted, such as metadata fields for “To,” “Subject,” “Date Sent” and the body of an email.  There is no need for a producing party to perform OCR on TIFFs if they have the original native files, because the searchable text can be extracted in processing. 

Federal Rule of Civil Procedure Rule 34

Federal Rule of Civil Procedure 34(b)(1)(C) allows a requesting party to “specify the form or forms in which electronically stored information is to be produced.” In re NetBank, Inc., 73, citing Rule 34. If there is a dispute and a motion to compel, a Court is not limited to ordering the form of production the requesting party stated to resolve the dispute.  In re NetBank, Inc., 73-74.

Don’t Argue Imaginary Problems

The Court stated that all of the “problems” the Producing Party argued were all hypothetical, not actual problems the parties were litigating.  In re NetBank, Inc.,74. 

There was no evidence that the Plaintiff were altering native files or that both parties lacked the software to review native files.  In re NetBank, Inc.,74.  Moreover, if native files were going to be trial exhibits, the Court was “confident that the precision of record citations can be appropriately dealt with…”  Id.

On the other hand, the Requesting Party was able to show the increased difficulty of reviewing native files as TIFFs. The elimination the searchable fields made “review and analysis much more difficult and expensive,” and likewise “conceals (by omission) any metadata known to the Defendants.” In re NetBank, Inc.,74.

The Court ordered the production of native files, because the Producing Party gave “no good reason why they should not produce…in native format.”  In re NetBank, Inc., 74-75.

Bow Tie Thoughts

This case is either an example of a party either not understanding electronically stored information or just engaging in gamesmanship to obstruct their opponents in discovery. 

A party can produce ESI as TIFFs (or PDF’s) and make use of processing software to extract metadata to produce searchable text.  However, parties may not exchange in “data dumps” on an opposing party to frustrate and drive up the costs of document review.

Follow the Court Order: If You are Ordered to Produce Searchable PDF’s, Don’t Produce TIFFs without Searchable Text

Gamesmanship is the harbinger of bad lawyer reputations.  Not obeying Court orders can be the death warrant on how the judge will view you every time you appear in her courtroom.  One can imagine how things will go for a party when this is the opening line of an opinion:

This is the second needless discovery motion in this case – needless because plaintiff’s counsel simply refuses to follow the letter of court orders, and in this case, not even the spirit. Ajaxo Inc. v. Bank of Am. Tech. & Operations, Inc., 2008 U.S. Dist. LEXIS 97602, 1 (E.D. Cal. Dec. 1, 2008).

Ignoring the Form of Production in a Court Order

The Court ordered ESI be produced in a searchable form and Plaintiffs agreed to searchable PDF’s. 

The Plaintiffs instead produced 119 static images (TIFFs) WITHOUT extracted text for searching, any pagination, or a load file for a litigation support review system.  Ajaxo Inc., 3.

The Plaintiff’s expert material was produced at first late in non-searchable format on 5 CD’s. Ajaxo Inc., 3.  A searchable production was made months later after the motion to compel was filed.  Id.

Preparing for an expert deposition with 5 CD’s worth of non-searchable material does not sound like a good time.

The Court found the Defendants were prejudiced because they could not adequately prepare for the expert’s deposition with the large volume of documents. 

Prejudice was encountered with respect to the Hampton CDs in that the Bank could not adequately prepare for Hampton’s deposition given the volume of documents. Ajaxo Inc., 3. 

The Plaintiffs were ordered to produce both productions in a searchable format and instead disregarded the Court Order.  This did not go unnoticed by the Judge.  Ajaxo Inc., 3. 

Things Judge’s Don’t Like: Excuses

The Court was not thrilled with the Plaintiffs claiming the Federal Rules of Civil Procedure do not require ESI productions in searchable format. 

The Court bluntly stated, “[Plaintiffs’] belief that the Federal Rules may not require production in searchable format is not only wrong, but again ignores the terms of the specific order.” Ajaxo Inc., 4.

Federal Rule of Civil Procedure Rule 34 Review

The Court included the following summary on form of production protocols from the Federal Rules of Civil Procedure, the Advisory Committee notes and case law:

Fed. R. Civ. P. 34(b) permits the requesting party to specify the format of electronically produced documents, subject to objection by the producing party with a statement in the Rule 34 response specifying the form in which the documents will be produced. This objection may be sustained or overruled by a court. In the absence of a court order, and if no specific request is made, the producing party may produce the documents in native format, or in a “reasonably usable” form. Ajaxo Inc., 4, citing Rule 34(b)(2)(E).

A responding party may not change the form of production to make what was ordinarily searchable, non-searchable. Rule 34 Advisory Committee Notes 2006 amendment. Courts may order electronic documents to be produced in searchable format. Ajaxo Inc., 4-5, citing, In re Seroquel Product Liability Litigation, 244 F.R.D. 650, 654-55 (M/D. Fla. 2007); Hagenbuch v. 3B6 Sistemi etc., 2006 U.S. Dist. LEXIS 10838, 2006 WL 665005 (N.D. Ill. 2006)

Enter the Sanctions Motion

The Defendants sought the following sanctions pursuant to the Court’s inherent powers and Federal Rule of Civil Procedure Rule 37(b) (2):

(1) Order it established that Ajaxo and KCM are alter egos;

(2) Order plaintiffs precluded from relying on Hampton’s expert report to support their claims for damages;

(3) Monetary sanctions in the amount of $ 12, 592.50 for fees incurred to date. Ajaxo Inc., 5.

Perspective from the Bench: Not Happy, but Not Fatal to the Plaintiffs’ Case

The Court directly stated:

[Plaintiffs’] counsel may not pick and choose when to comply with a court order depending on counsel’s unilaterally determined excuses or justifications not to comply with the order. The order is either obeyed or appealed. Nor should courts issue orders which they are unwilling to enforce. There is importance per se in not allowing a party to ignore orders – the litigation process would otherwise descend into chaos. Thus, sanctions must be imposed here. Ajaxo Inc., 7.

The Court’s sanctions analysis focused on the Plaintiff counsel’s willful disobedience of the Court order and the prejudice the Defendants incurred. Ajaxo Inc., 7.

The Court was not ready to decimate the Plaintiffs’ case by striking their expert because of the attorney’s conduct.  The Court “barely” believed that Plaintiffs’ counsel acted in ignorance of the law and not in “contumacious disrespect” of it.  Ajaxo Inc., 8. 

The Court ordered the Plaintiffs to re-produce their expert for deposition, because the Defendants did not have adequate time to prepare for the expert’s original deposition.  Ajaxo Inc., 9.

The Court further ordered the costs of the deposition and motion.  Ajaxo Inc., 9-10.

Final Thoughts

Attorneys need to understand the procedures for requesting ESI, form of production requirements and complying with Court orders for electronic discovery to best serve their clients. The sheer volume of electronically stored information requires all lawyers to have a basic understanding of contemporary discovery.

Procrastination and Objecting to the Form of Production Don’t Mix

It is beyond cavil that this entire problem could have been avoided had there been an explicit agreement between the parties as to production, but as that ship has sailed, it is without question unduly burdensome to a party months after production to require that party to reconstitute their entire production to appease a late objection.

United States Magistrate Judge Ester Salas, Ford Motor Co. v. Edgewood Props., 2009 U.S. Dist. LEXIS 42001, 21 (D.N.J. May 18, 2009)

Ford Motor Company and Edgewood were locked in a series of disputes.  One portion of the dispute was over a discovery request for native files with metadata and the Responding Party’s production.

Edgewood requested electronically stored information in native file format with metadata.  Ford instead produced the ESI as static images (TIFFS) with searchable text.  Ford, 13-14.

Federal Rule of Civil Procedure Rule 34 allows for a requesting to state the form of production and request metadata.  Pursuant to Fed. R. Civ. P. 34(b)(2)(D),  “If the responding party objects . . . the responding party must state “the form or forms it intends to use for its production of ESI.” Ford, 15.  The requesting party can object to a counter form of production, which should be followed by a meet and confer over the dueling forms of production.  Fed. R. Civ. P. 34.

That is not what happened here…at least not in a reasonable period of time.

The Discovery Production

There were three productions in the Producing Party’s counter-form of production over an 8 month period.  Ford, 19.

The Requesting Party waited 8 months to object to the static production with searchable text.  Id.

The Court stated the Requesting Party’s delay was “patently unreasonable.”  Id. 

While not setting out a rigid rule on timelines to object to a form of production(which would probably result in case law chaos given the nature of ESI), the Court held it was unreasonable to wait 8 months to object when the production was nearly finished.  Ford, 20. 

Reasonableness is king when it comes to discovery and waiting 8 months was not reasonable. 

The Court further stated:

One may reasonably expect that if document production is proceeding on a rolling basis where the temporal gap in production is almost half a year apart, a receiving party will have reviewed the first production for adequacy and compliance issues for a reason as obvious as to ensure that the next production of documents will be in conformity with the first production or need to be altered. It was incumbent on Edgewood to review the adequacy of the first production so as to preserve any objections.  Ford, 19-20. 

The Court held the Requesting Party’s objection was untimely and requiring the Producing Party to produce ESI as native files to be unduly burdensome.  Ford, 21.

What the Party Should Have Done

The Requesting Party was required under Fed. R. Civ. P. 34 to object to the Producing Party’s proposed form of production.  If they were unable to reach an agreement on how to produce the ESI, the Requesting Party was required “to alert the Court within a reasonable period of time.”  Ford, 20.

Now, what is reasonable?  That will turn on the nature of the case, how involved the parties are in the meet and confer process and other factors showing reasonableness.

Name that Form of Production: Converting ESI to TIFF without Metadata is Not a Reasonably Useable Form

Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 U.S. Dist. LEXIS 21250 (M.D. Fla. Mar. 4, 2009) is a lengthy opinion covering Rule 34 requests, form of production issues concerning metadata, reasonably useable form of production, ethical responsibilities for candor to the Court and Opposing Parties and sanctions.  One could imagine the fact pattern on a Bar exam for issue spotting. 

The Procedural History Highlights

Defendant Lexington Ins. Company requested electronically stored information “in native form without deletion or alteration of metadata” from Plaintiff Bray & Gillespie. Bray & Gillespie, 13.  Bray & Gillespie (B&G) instead produced non-searchable TIFFs stripped of metadata.  Several attorneys from Reed Smith also withheld material information and made misrepresentations to the Court and Opposing Counsel as the motion to compel saga played out. 

Lexington Ins. Company sought sanctions against the Plaintiffs and to compel the production of ESI with metadata. 

Short Overview of ESI Collection

B&G had student interns download electronically stored information and scan paper documents.  This information was copied to a “Target Hard Drive” and given to the law firm Anderson, Kill & Olick, P.C.  Extractiva was then used to convert the ESI to static images (TIFFs) and extract metadata.  This ESI was then loaded onto an Introspect review database.  Bray & Gillespie, 7-8.

Reed Smith became the attorneys for B&G after one of the lawyers left Anderson, Kill & Olick, P.C. 

The Discovery Request & Production

After Lexington made discovery requests for electronically stored information, the Plaintiffs produced paper documents on disk and agreed to a “rolling production.”  Bray & Gillespie, 14-15.  The Defendants brought a motion to compel several months later when the Plaintiffs had not begun a “rolling production.”  Bray & Gillespie, 17.

Nearly four months after the rolling production agreement, the Plaintiff produced some ESI from the Introspect database on disk.  Bray & Gillespie, 18. 

The Defendants renewed a motion to compel shortly after the first ESI production.  Bray & Gillespie, 20.  A second production followed after a Court order.

As the Defendants began reviewing the ESI productions, they learned the ESI was in TIFF format, with no metadata or extracted text for author, data, or subject.  Bray & Gillespie, 22-23.

Producing ESI in a Reasonably Useable Form

The Court stated that producing the ESI in TIFF format without metadata eliminated the search capabilities compared to producing the ESI in native form.  As such, the ESI production was not in a reasonably useable form.  Bray & Gillespie, 23.

There were two options for making the production searchable: Option 1) OCR the TIFFs and then run ALCoder over the OCR to populate database fields for author, date, etc.  This would cause an additional cost to the Defendants, since the material was already searchable in native file form.  Option 2) Produce ESI in native form with extracted text, which makes use of the already searchable native files. 

 …and then Things Get Worse with Misrepresentation to Court on ESI Collection

You know someone is getting sanctioned when a Judge uses a lawyer’s name and the phrase “concocted a story” in an opinion. 

One of the Plaintiff lawyers represented to the Opposing Party and the Court that the Plaintiff printed all of the ESI and it was then scanned as TIFFs.  Bray & Gillespie, 25.

The Court summed up the “concocted story” as ignoring readily available or known facts pertaining to the collection and production of ESI.  Bray & Gillespie, 25-26. 

Enter the Sanctions Motion

The Defendants were not happy.  The Defendants claimed the Plaintiffs violated the Court order to produce ESI according to the form of production stated in the discovery requests.  The Defendants sought production of ESI according to the discovery requests, striking portions of the Plaintiffs’ claims and reasonable costs. Bray & Gillespie, 28.

The Court ordered B&G to produce to the Defendants the Plaintiffs’ Introspect database, minus any privileged ESI.  Bray & Gillespie, 66.  Additionally, B&G was ordered to pay all costs, including buying software or hiring someone to copy the litigation support database.  Bray & Gillespie, 67-68. 

The Plaintiffs were also required to allow a Defense computer expert direct access to the Plaintiffs’ Introspect database to confirm all non-privileged information had been produced.  Bray & Gillespie, 67-68. 

The lead attorney for the Plaintiffs was sanctioned and ordered to pay attorney’s fees and costs, which included the testifying expert and the Court reporter for transcribing the sanctions hearing. Bray & Gillespie, 71-72.   Others were sanctioned as well.

This is a very lengthy case that is fact intensive.  Every detail is not summarized in this blog.  The case is worth reviewing for the discussion on the reasonably useable form of production, discovery misconduct and the sanctions motion.