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However, at least one unpublished California opinion hints Courts want more than mere speculation that a discovery production was inadequate: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 Unfortunately, California discovery orders are not published and unpublished cases cannot be cited for any precedential value.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

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.

All I Want For Christmas Are Taxable eDiscovery Costs

Nothing says Merry Christmas like winning eDiscovery costs. One party was able to get over half the gifts on their Christmas List from the Court as taxable costs.

The Defendants submitted eDiscovery costs over $40,000, which was nearly two-thirds of the Defendant’s bill of costs. A service provider made up over half of the eDiscovery costs with a bill of $22,706.90. The rest of the bill was from internal eDiscovery costs. Moore v. Weinstein Co. Llc, 2012 U.S. Dist. LEXIS 178738, 9-10 (M.D. Tenn. Dec. 18, 2012).

Like any Christmas List, the Court found some items to be unreasonable. However, the Court found the service provider’s costs of $22,706.90 to be “reasonable and necessary.” Moore, at *8.

The Case Management Order required production as single-page TIFF’s with Summation DII and LFP load files. Id. The Court stated that the CMO required the processing costs to be incurred by each party. Id. The Court also found that “processing…document[s] for production by, for example, searching for specific custodians, is also a necessary cost of this litigation.” Id.

The Court found that the in-house charges at $150 an hour were “unreasonable.” The Court noted that the service provider hourly rate was $175, “which would presumably be significantly higher than the rates billed” to the Defendant. Moore, at *8-9.

The Court found the following:

The Magistrate Judge believes that a rate comparable to an experienced paralegal would be more appropriate. The technology services technologists have specialized expertise and training similar to a paralegal. Therefore, the Magistrate Judge will set a more reasonable billing rate of $100/hour for Technology Services billing.

Moore, at *9.

The Court found several time entries unnecessary, including:

         Work on discovery budget;

         Preparation of deposition transcripts for review;

         Preparation of documents for hearing; and

         Prepare for and attend telephonic deposition of IT vendor

The Court found that the above totaled 134.9 billable hours at the Court-reduced rate hourly rate of $100 for a total of $13,490.00. Moore, at *9.

Based on the reduction of $13,490.00, the new total taxable costs for eDiscovery were $36,196.90. Moore, at *9-10.

Bow Tie Thoughts

No child ever gets EVERYTHING they want for Christmas. However, the Defendant in this case got a lot in their taxable costs, even if it was at a reduced rate.

In determining eDiscovery costs, it is important to understand what work is actually being done when a Court discusses “processing.” Processing is defined by the Sedona Conference as follows:

Processing Data: An automated computer workflow where native data is ingested by any number of software programs designed to extract text and selected metadata and then normalize the data for packaging into a format for the eventual loading into a review platform.

May also entail identification of duplicates/deduplication and rendering of data into delimited format.

The Sedona Conference Glossary, September 2010

eDiscovery specialists who perform advanced searches, processing, data reduction, recommend technology to use on a case are truly well-educated professionals. It was very good to see a Court recognize their abilities in awarding costs.

Production Requirements Under Federal Rule of Civil Procedure Rule 34 (Video)

Form of Production in eDiscovery

A discussion of the form of production under Federal Rule of Civil Procedure Rule 34, plus one recent case.

Rationally Organized Productions pursuant to Federal Rule of Civil Procedure Rule 34(b)(2)(E)

Production requirements for documents and electronically stored information under Federal Rule of Civil Procedure Rule 34(b)(2)(E) and a short summary of City of Colton v. Am. Promotional Events, Inc., 2011 U.S. Dist. LEXIS 126848, 47-48 (C.D. Cal. Oct. 13, 2011).

You Do Have to Look for Discovery in Your Possession

A Producing Party (the Defendant) argued against searching for responsive electronically stored information, claiming “that the mere fact an employee might have discoverable information or relevant knowledge does not necessarily mean she possesses relevant documents.” McNearney v. Wash. Dep’t of Corr., 2012 U.S. Dist. LEXIS 108386, 14-16 (W.D. Wash. Aug. 1, 2012).

Negative inductive reasoning aside, Federal Rule of Civil Procedure Rule 34 requires a party “to produce requested documents if they are within his ‘possession, custody, or control.’” McNearney, at *14, citing Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 165 n.6 (1980) (Stevens, J., concurring in part and dissenting in part).

The Producing Party did not challenge that it failed to search for responsive electronically stored information from “numerous employees identified as likely having discoverable [information],” but took the position that just because it was possible the custodians had relevant information, did not mean they actually had the relevant information.  McNearney, at *14.

The Court agreed with the logic, but that did not give the Producing Party a free pass on its duty to make a reasonable inquiry, especially considering the fact the Producing Party identified the employee as likely having relevant information. Id.

Further causing problems for the production, was a difference in email messages produced by the Defendant and two other Defense custodians, suggesting that there had not been a reasonable search for email by one of the Defense custodians. McNearney, at *14-15.

The Producing Party also conceded that it did not produce email attachments and that its search scope was narrower than the Plaintiff’s discovery requests. McNearney, at *15.

The Court held the following on the Defendant’s search:

Defendant’s production of some documents in response to RFP No. 5 does not satisfy its duty to make a reasonable search for and produce all responsive documents in its possession, custody, or control. Despite its original objection that RFP No. 5 was unduly burdensome because it was “a trap for Defendants,” DOC has not demonstrated that conducting a thorough search for responsive ESI would pose an undue burden or cost, as required in responding to a motion to compel. Fed. R. Civ. P. 26(b)(2)(B).

McNearney, at *15-16 (Emphasis added).

Bow Tie Thoughts

A party must demonstrate undue burden to limit discovery. This does not include an argument “that just because there might be something relevant, does not mean there is something relevant.”  While that is true in a logical discussion during a philosophy class, the Federal Rules of Civil Procedure are not an exercise in metaphysical nihilism to circumvent a party’s duty to conduct a reasonable search for responsive ESI to a discovery request.

The Federal Rules of Civil Procedure require ESI to be produced as it is ordinarily maintained or in a reasonably useable form. By the plain language of “ordinarily maintained,” a producing party cannot break the parent-child relationship between email messages and their attachments (or Tweets and Hyperlinks or text messages with photos).  Additionally, a production that breaks the parent-child relationship is not in a “reasonably useable form,” since searching for an attachment to its corresponding message is like re-unitizing a document that has had its staples removed and the pages shuffled with 1,000 other pages.

The technology to collect, search and produce electronically stored information are well established now after a decade of being available. These products are common services offered by eDiscovery service providers and many law firms have brought these technologies in house. While electronic discovery has many challenges, there are solutions available to these challenges that are affordable.

Arguing $2,630 is Undue Burden to Search ESI

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

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

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

Rule Summary

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

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

Hudson, at *2.

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

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

(1) The specificity of the discovery request,

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

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

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

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

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

(7) The parties’ resources.

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

The Court’s Analysis 

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

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

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

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

The Court gave the parties two options:

Option 1:

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

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

Option 2:

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

Hudson, at *5.

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

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

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

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

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

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

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

Bow Tie Thoughts

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

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

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

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

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

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

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

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

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.

Piercing the Work Product Doctrine: Gamesmanship with Locked PDF’s

The Plaintiffs in Mack v. HH Gregg, Inc. sued the Defendants for breach of contract over the alleged failed installation of dryers.

The parties agreed the Defendants would produce a “summary of its dryer installation invoices that would include the state of the sale, date of purchase, amount paid for delivery and installation, and the make and model of dryer purchased.”  Mack v. HH Gregg, Inc., 2010 U.S. Dist. LEXIS 8281 (S.D. Ind. Jan. 29, 2010).

The Defendants in turned produced an 11,757 page “locked” PDF summary for the Plaintiffs. Mack, at *2.

The Plaintiffs were understandably upset (hence the motion to compel) about getting a giant PDF that they could not edit or manage without re-typing the entire file. 

The Plaintiffs wanted the ability to “re-group” the data.  Mack, at *3.  In the litigation support profession, this would be the re-unitization of the scanned paper or ESI converted to static images, either based on logically grouping documents or simply at document breaks, in a litigation support review platform.  For example, if you had a medical file, the reviewing attorney would have the doctor’s handwritten notes, x-rays and the pathology report as separate documents, instead of viewing the file as one giant document. 

The Plaintiffs requested the Defendants produce the PDF in its original file format.  The Defendants refused, claiming the following objections:

(1) The PDF was protected from discovery by the work product doctrine;

(2) The Defendant was not required because the parties never agreed to the format in which the information would be produced, and

(3) Production would be unduly burdensome. 

            Mack, at *3.

A Case Study in Watching the Court Sink Your Arguments

The “Free Ride”

The Defendant’s argued the Plaintiffs would get a “free ride” on the Defendants’ work if the Plaintiffs could have the PDF in an “unlocked” form. Mack, at *4.

First, the Defendants agreed to produce the responsive information as a summary instead of producing the actual information.  Secondly, the Defendants voluntarily produced the PDF as a summary of the Plaintiffs’ requested information.  Mack, at *3-4. 

The Court stated whether the PDF was unlocked and editable or locked and uneditable had “no bearing on its status as work product.” Mack, at *3. 

The Court held there was no substantive difference between the locked PDF verse the PDF in its original file format.  Mack, at *4.  Thusly, the argument that the Plaintiffs would somehow get a “free ride” if the Plaintiffs could manipulate the data fell flat.

The Form of Production

The Defendants claimed that since no form of production was specified by the Plaintiffs, the Defendants could produce a locked PDF.  Mack, at *5.

The Court’s holding: No.

Federal Rules of Civil Procedure Rule Fed. R. Civ. P. 34(b)(2)(E)(ii) states:

 “…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.” Mack, at *5.

The Court explained the PDF summary was a data compilation that should have been produced in a reasonably usable form.  Mack, at *5.  However, the Defendants chose to produce the 11,757 page PDF that contained around 600,000 individual sales of dryer installations in a locked form.  Mack, at *5-6.  Any attempt to logically unitize the data would have required the Plaintiffs to retype the entire document.  Mack, at *6.  This is not a “reasonably usable form.”

The Court noted that the Plaintiffs in earlier discovery requested all electronically stored information be produced in a form that a “less convenient format.” 

The Court found the Defendants’ form of production arguments to be meritless. 

Undue Burden

The Court was “skeptical” of the Defendants’ undue burden arguments, because that would mean the Defendants themselves did not keep a reasonably usable unlocked file for themselves to use. Mack, at *6-7.

The Court opined that if the Defendants did not keep an unlocked version of the PDF, “…the only plausible motive for rendering the document useless to itself was to set up the very problem that has now arisen, allowing it to plead burdensomeness. If that is the case, [the Defendants] consciously and purposefully created its burden.” Mack, at *7.

In a not-so-shocking order considering the above, the Court granted the Plaintiffs’ motion to compel production of the summary document in its original format. 

Bow Tie Thoughts

Non-Searchable PDF’s

Working with a single non-searchable PDF that is 11,000 pages long is not my idea of a good time.  I helped a friend on a case where the opposing party produced thirteen non-searchable PDF’s each with 1,000 to 2,000 pages (the production was from scanned paper).  We had the service provider logically re-unitize the pages based on document breaks, run optical character recognition over the files and AL Coder for auto-coding.  The newly converted TIFFS with searchable OCR were then loaded into CT Summation iBlaze for review. 

Production Games

Courts frown on gamesmanship. Moreover, Judges scowl at those who take reasonably usable electronically stored information and convert it to a non-usable form without proper objections, perhaps for redactions.  Even then, a producing party would be hard pressed to not produce an un-redacted static image without extracted text and the redacted static image without searchable OCR, minus the redacted sections of the converted ESI. 

The consistent answer across case law from the last five years is that productions should be in a reasonably usable form. Those who eliminate the searchable features do so at their own peril.

The Form of Production Battle of the Bulge: Scanned PDF’s Not a Reasonably Useable Form

“In the court’s experience, scanned PDFs, as opposed to electronically-produced PDFs, are not reasonably usable.”

Magistrate Judge Paul M. Warner

In Accessdata Corp. v. Alste Techs. Gmbh, 2010 U.S. Dist. LEXIS 4566 (D. Utah Jan. 21, 2010), a United States based company that produces forensic software used in e-Discovery, entered into a contract with a German company.  Litigation ensued when a contract dispute broke out and e-Discovery turned into a war. 

The Form of Production Einwand und Angriff

The German Defendants produced electronically stored information as hard copies and converted the scanned images to PDF’s.  The Plaintiffs claimed the production was not reasonably searchable.  Accessdata Corp. at *16.

The Defendants claimed the production was in a “reasonably useable form,” because they printed all the ESI as paper and had it scanned as PDF’s.  Accessdata Corp. at *17.  Adding insult to injury, the Defendant further claimed it would be unduly burdensome and expensive to somehow “fix” the ESI so it was searchable.  Id.

The Plaintiff, perhaps feeling a little like General Patton, cited Federal Rule of Civil Procedure Rule rule 34(b)(2)(E)(ii), which states that electronically stored information should be produced “in a form or forms in which [they are] ordinarily maintained or in a reasonably useable form.” Accessdata Corp. at *17.

e-Discovery Untergang

The Court channeled General Eisenhower in its ruling. 

The Court ruled the Defendant was required to produce its electronically stored information “…in a form or forms in which it is ordinarily maintained or in a reasonably usable form.” Accessdata Corp. at *18. citing Fed. R. Civ. P. 34(b)(2)(E)(ii).

The Court stated the previously produced electronically stored information was ordinarily maintained in an electronic format.  Accessdata Corp. at *18.  Converting ESI to paper and then scanning to PDF’s destroys searchable features of the inherently searchable electronically stored information. 

The Court noted that the option to produce in a “reasonably useable form” does not give a party free rein to destroy the searchable functions of the e-Discovery.  Accessdata Corp. at *18.   If ESI is ordinarily maintained in a searchable form, the information “should not be produced in a form that removes or significantly degrades this feature.” Accessdata Corp. at *18, citing Fed. R. Civ. P. 34(b) Advisory Comm. Notes to 2006 Amendment.

As the Court concluded, “In the court’s experience, scanned PDFs, as opposed to electronically-produced PDFs, are not reasonably usable.” Accessdata Corp. at *18-19.

The Defendant was thusly ordered to re-produce electronically stored information in native file format or an electronically-generated PDF format.  Accessdata Corp. at *19.

Bow Tie Thoughts

Producing electronically stored information as scanned paper in PDF format is about as defensible as the Maginot Line (especially when your opponent makes electronic evidence software).  Parties are ill-served by playing such discovery games, unless they want to be on the losing end of a motion to compel that reads like the Treaty of Versailles.

New Bad Idea: Claiming You Can Produce ESI as PDF’s because “Native File” is “Ambiguous”

In Cenveo Corp. v. Southern Graphic Sys., 2009 U.S. Dist. LEXIS 108623 (D. Minn. Nov. 18, 2009), the Defendant propounded the following discovery request:

“Defendant requests that these documents be produced in native format with all attachments in native format.” Cenveo Corp., at *2.

The Plaintiff produced all electronically stored information as PDF’s.  Cenveo Corp., at *2.

The Plaintiff argued (and probably very forcefully) that since the Defendants did not define “native format,” the PDF production complied with Federal Rule of Civil Procedure Rule 34(b)(2)(E)(ii).  Cenveo Corp., at *3. This Rule provision states the following:

“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.” Fed. R. Civ. P. 34(b)(2)(E)(ii).

The Plaintiff’s argument that the “failure” to define “native format” thus allowed them to produce ESI as PDF’s was not quite the Hindenburg of “form of production” arguments, but it did go down in flames.

The Court held that the term “native format” was “unambiguous.”  Cenveo Corp., at *3-4.  Moreover, the Court found the Plaintiff failed to comply with the Defendant’s request for native file production and Federal Rule of Civil Procedure Rule 34(b)(1)(C), which allows a requesting party to specify the form of production.   Cenveo Corp., at *4. 

The Court recounted multiple cases and several secondary sources which define “native format.”  The reoccurring theme for the definition of “native format”  is the “default format of a file,” which is “typically provided through the software program on which it was created.” Cenveo Corp., at *4, citing Aguilar v. Immigration and Customs Enforcement Div. of U.S. Dept. of Homeland Sec., 255 F.R.D. 350, 353 n.4 (S.D.N.Y. 2008).

The Court held that Plaintiff had to produce (or re-produce) responsive electronically stored information in native file format.  Cenveo Corp., at *7-8.  The Court further found that the Defendant’s requests were neither overly broad or unduly burdensome.  Id. Moreover, the Plaintiff offered no argument why it could not produce the ESI in native file format.  Id. As such, the Plaintiff was required to produce their electronically stored information as native files.

Bow Tie Thoughts

Courts are not tolerating parties who play games such as “I don’t know what you mean by ‘native format’?”  Electronically stored information is part of everyday life with people using Droids and sending mobile Facebook updates.  While there will always be gamesmanship in litigation, claiming “native format” is an undefined term is like asking, “what do you mean by ‘paper’?”