Straightening Out the Form of Production

Magistrate Judge Stanley Boone had to straighten out a form of production dispute in a consumer protection case over curling irons. As the parties in this case learned, sometimes the form of production needs a detangler.

The Plaintiffs requested ESI to be produced in native file format or TIFF with associated metadata. The Defendant produced ESI as PDFs. Wilson v. Conair Corp., 2015 U.S. Dist. LEXIS 57654, 4-5 (E.D. Cal. Apr. 30, 2015).

Judge Boone began his analysis with a summary of the form of production rules under Rule 34:

(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; and

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

Wilson, at *6-7.

The Plaintiff’s request for ESI to be produced in native format was very standard. However, the data requested was produced from a proprietary third-party “STARS” database. Wilson, at *8. The Plaintiffs would not be able to access or review this data as it is ordinarily maintained because of its proprietary nature.

The Defendants produced the proprietary ESI as PDFs. The Plaintiff challenged this static image form of production in favor of TIFFs with metadata. Wilson, at *9. However, the Defendants were willing to produce future ESI as TIFFs. Id.

Excel files were also produced as PDF’s in order to redact information. Id. The Plaintiffs sought the Excel files to be produced in native file format. Id.

The Plaintiffs argued in favor of a TIFF production over PDF because the “format is more efficient, cost effective, and better suited for use inside a database application and it will require additional work to get the data produced in PDF format into a usable state.” Wilson, at *9-10.

The Plaintiffs further demanded the ESI from the STARS database be produced in Excel format. The Defendants ultimately agreed to this production format, but did not explain how the issue of redaction would be addressed in the opinion. Wilson, at *10.

The Court stated, the “Rules do not require a party to produce ESI in the form most helpful to the opposing party.” Wilson, at *10, citing U.S. ex rel. Carter v. Bridgepoint Educ., Inc.,     F.R.D.    , 2015 U.S. Dist. LEXIS 26424, 2015 WL 818032, at *15 (S.D. Cal. Feb. 20, 2015). As such, the Court ultimately held that 1) the STARS data could not be produced in its native format; 2) the Defendant would produced additional discovery in TIFF format; and 3) the Defendant would produce associated metadata for its prior production if it had not already done so. Wilson, at *11.

Bow Tie Thoughts

As any good hair stylist can tell you, a good product can help detangle knotted up hair. The same can be said for virtually any of the review applications on the market today. Most pride themselves on being able to review native file format, near-native, and static images such as TIFF and PDF.

I think it is odd to have a fight over which static image to produce. Both TIFF and PDF work well in today’s modern review applications. This was not always the case, as PDFs can be both a native file and static image in older review applications. It has been awhile since I have seen this be an issue in document review. That being said, if a requesting party asks for a specific static image format, I recommend honoring the request.

There are horror stories where producing parties have produced batches of native files as massive PDF’s that are several hundred, or thousand, of pages. In those situations, the requesting party has a very strong argument that the production was not in a reasonably useable form.

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

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

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

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

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

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

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

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

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

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

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

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

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

Request for Production 3:

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

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

Request for Production 4: 

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

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

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

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

Smile for the Discovery Production

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

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

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

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

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

Federal Rule of Civil Procedure Rule 34(a)(1)(A) permits a party to request electronically stored information that is “stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.” Bean, at *2, citing Fed. R. Civ. P. 34(a)(1)(A).

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

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

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

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

Bow Tie Thoughts

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

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