Form of Production Battles: TIFF vs MSG

Pick your battles is a truism in form of production disputes.


In Feist v. Paxfire, Inc., the Plaintiff alleged the Defendant made multiple discovery abuses, from producing email in .msg format and not as TIFF, to making an “intentionally burdensome production.” Feist v. Paxfire, Inc., 2015 U.S. Dist. LEXIS 145024 (S.D.N.Y. Oct. 26, 2015). These arguments failed.

The Plaintiffs requested ESI to be produced as TIFFs and argued that the Defendant did not properly object to the form of production. Feist, at *2. The Court held that the Plaintiff’s argument was meritless, because 1) there were email communicates between counsel regarding the form of production for email in .pst format; 2) the Court downplayed the difference between .pst and .msg format; and 3) that “msg format contains more metadata than TIFF format.” Feist, at *4. The Court further stated that there was “no evidence” that the .msg form imposed “considerable costs” for the Plaintiffs. Id.

It is worth noting that TIFFs are static images that contain no metadata at all. Any metadata would need to be produced in a load file. While it is wise to always review in a review application, I personally would prefer reviewing native files in a near-native view in a hosted application.

The dispute further included the Defendant’s 2012 production being shared to the Plaintiff in a Dropbox folder. An attorney for the Plaintiff deleted some of the information on Dropbox, resulting in the Defendants re-producing the deleted ESI with a supplemental production. Feist, at *5.

The Court held the Plaintiff responsible for the production of any duplicative ESI, citing an email from Plaintiff’s counsel stating, “that Plaintiff’s counsel was attempting to restore files unsuccessfully, and that she understood ‘you are sending us a hard drive with the materials, so we don’t need to worry about drop box [sic]…’” Feist, at *5-6.

Judge Ronald Ellis ended the opinion with these final words to the litigants: On balance, both Parties have caused unnecessary delay in discovery and have exhibited a lack of communication regarding document production. Feist, at *6.

Bow Tie Thoughts

Attorneys often get lost in the “fog of war” in eDiscovery disputes. There are times when bringing a motion to compel is the absolute right answer; there are times when it is the absolute wrong course of action.

Is it really worth fighting over producing ESI with redactions as TIFFS instead of PDFs? Most review applications give options for either format. If the requesting party wants one over the other, the fight is just not cost effective.

History has many examples of miscommunications resulting in disaster. Lawyers who want to fight on every issue run the risk of ignoring what the opposing party is saying, creating a situation that can end in expensive motion practice. In the end, this results with money and time being lost with nothing gained.

Be Specific If You Are Going to Attack the Form of Production

Oh, Rule 34. You are the code section that keeps giving.

Under Federal Rule of Civil Procedure Rule 34(b)(2)(E)(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.”

A Plaintiff brought a motion to compel the opposing party to organize and label their production to correspond to the categories in the Plaintiff’s Requests for Production. Things did not go well for the Plaintiff’s motion. Hall v. Habul, 2015 U.S. Dist. LEXIS 87545, *15-16 (M.D. La. July 6, 2015).


The Defendant’s production was Bates labeled, but the Plaintiff still took the position that the production did not comply with Rule 34(b)(2)(E)(i). Id. Unfortunately for the Plaintiff, there was no further explanation as to why the production did not comply with the Rules. The Court did not know if the production was of electronically stored information, scanned paper documents, or a blended production. Id. Moreover, the Plaintiff did not explain why they did not believe the production was in the usual course of business, which is one of the production options under Rule 34(b)(2)(E)(i). Hall, at *16. As such, the Court could not determine if Rule 34(b)(2)(E)(i) was violated. Hall, at *15.

The only assertion the Court had to work with was the Defense attorney stating the “documents” were produced in the usual course of business. Hall, at *16. There was nothing in the record to refute this statement, thus the Court concluded the Defendant complied with Rule 34(b)(2)(E)(i). Id.

Bow Tie Thoughts

If you are going to challenge a production, be sure to specifically state what is wrong with the production. This could be the request for production called for native file format and static PDF’s were produced instead. There are many ways a production could not comply with the Rules.

I know many attorneys who produce ESI in the “usual course of business,” thus do not believe in labeling their productions. I know a few who revel in this strategy, wanting to let the other side figure out what records correspond to each discovery request. These attorneys often view the opposing party as a zombie hoard to be destroyed without mercy.

Being a good anal-retentive Virgo, I have a different view of document review. I believe in setting up issue coding to correspond to the Requests for Production. If you really want to get organize, have the RFP’s correspond to your Causes of Action or Defense, so you know exactly what supports your arguments and responds to the opposing party. This is excellent for being able to quickly retrieve records for review in preparing discovery responses or motion practice.

Most review applications allow coding fields to be exported out as an Excel file or CSV. A producing party can comply with Rule 34(b)(2)(E)(i) by exporting fields in order of discovery requests for issue tagging (such as an RFP00001), followed by the Document Identifier, such as Bates, Docid, or Production Number, and relevant metadata, perhaps even the system file pathway to show how the origin of the record.

Parties are within their rights to simply produce discovery as it is maintained in the ordinary course of business. I prefer having them labeled, but that is both my preference and one option to specify under the Rules.


Proportionality in Asymmetrical Discovery

The Plaintiffs and Defendants in a SEC case highlight the importance of proportionality between asymmetrical parties. In such cases, one side has all of the electronically stored information for discovery requests; the other side does all the requesting. However, the smaller party can have an extremely high burden reviewing any produced ESI, especially if searchable features have been removed.

Magistrate Judge Leda Dunn Wettre in City of Sterling Heights Gen. Emples. Ret. Sys. v. Prudential Fin., (an opinion not for publication) did a great job balancing the proportionality interests between a motion to add additional search terms and custodians to the dispute.

Balancing Custodians

The Plaintiffs sough to add between 22 to 45 additional custodians for the Defendants to add to their discovery search. The Requesting Party made a strong argument for the additional custodians, including a chart of the custodians with the factual basis for expanding the scope of discovery. The parties had already agreed to 66 custodians. City of Sterling Heights Gen. Emples. Ret. Sys. v. Prudential Fin., 2015 U.S. Dist. LEXIS 110712, *4-5; 8.

The Court denied adding the majority of the additional custodians, explaining, Neither plaintiffs nor the Court can know with certainty, of course, whether searches of the additional custodians’ ESI will yield unique, noncumulative documents.” Sterling Heights, at *9. The Court further explained that it was satisfied that the vast majority of the custodians likely had duplicate information. Id.

Judge Wettre drove home her proportionality analysis with the following: the Court is cognizant of the sizeable costs to Prudential involved in the searching, review and production of information from each additional custodian. Although Prudential is a large corporation with substantial resources, the Court should not be – and is not-insensitive to these costs.” Id.

The Court found that the Plaintiffs had provided enough information that there was a “fair inference” that there could be more custodians with additional information. Id. Judge Wettre explained in terms of proportionality that:

Although the number of agreed custodians is already substantial, the resources and personnel at Prudential devoted to the Verus audit and related issues also seem to have been immense. Therefore, it is not surprising that more than 66 Prudential employees may have been heavily involved in the issues relating to this case and may thus have relevant, noncumulative information. Moreover, allowing plaintiffs a moderate number of additional custodians does not seem disproportionate to the size and scale of this action. The Court understands that there are electronic de-duping tools that may be utilized to limit defendants’ review and production of duplicative documents, reducing some of the burden on Prudential of producing information from additional custodians.

Sterling Heights, at *10.

The Court explained that permitting the plaintiffs to select an additional 10 custodians “would balance fairly plaintiffs’ rights to relevant discovery against the costs and burden to defendants of providing that discovery.” Sterling Heights, at *10-11.

Search Terms

The question of adding four new search terms was decided swiftly. The Defendants challenged adding more search terms, claiming they had already produced 1.5 million pages of discovery. Sterling Heights, at *11. The Plaintiffs responded that over half of the 1.5 million pages were “completely unusable redacted pdfs of Excel spreadsheets.” Id.

The Court held that the four search terms appeared designed to target relevant information. Moreover, the Plaintiff noted that if the Defendant had produced a hit count that showed the terms had an “egregiously large” number of “hits,” the Plaintiffs would have considered narrowing the terms. Id.

Judge Wettre allowed the additional terms and explained:

The Court does not have before it information on which it is persuaded that it should deny these four additional terms because they would produce an unduly large number of results likely to be irrelevant to this case. While the Court does recognize that defendant has agreed to a large number of search terms, that is not sufficient basis in and of itself to deny plaintiffs the four additional search terms they seek.

Sterling Heights, at *12.

Bow Tie Thoughts

If proportionality cases were rock concerts, this case has a few “gavel drop” moments. It is great to see a Judge who incorporated proportionality throughout the entire opinion.

Proportionality arguments should not be made out of thin air. The Plaintiffs made a noble effort providing a chart with each additional custodian explaining the factual basis for expanding the scope of discovery for each individual. While they only got 10 additional custodians, this was an excellent way to explain to a Court the value of adding custodians to decide the merits of a case.

The search term arguments for both parties could have been stronger if the proposed search terms were supported by affidavits from expert witnesses. To be fair, the arguments might have been, but the tone of the opinion sounds like the arguments did not include expert affidavits. There are many lawyers who think that because they can conduct case law research that “search terms” in discovery are the same thing. That is a dangerous assumption.

I strongly encourage lawyers to work with eDiscovery consultants to help identify the concepts to identify electronically stored information. Advanced analytics from clustering of similar files to email threading, to visual analytics, to predictive coding all can help identify responsive files. Lawyers should think beyond “search terms” to concepts in order to search discovery.

Finally, I feel greatly for the Plaintiffs who had to review non-searchable PDF’s of Excel files. There are ways to redact Excel files that would require agreements between the parties, but it can be done. This would keep Excel files in native format and avoid spreadsheets exploding into multiple page nightmares.

In closing, a hat tip to the Judge and both parties on their well argued positions and the opinion.


Please Vote for Bow Tie Law for Best Legal Blog

Vote-CountsI am honored Bow Tie Law has been nominated for The Expert Institute’s Best Legal Blog Contest.

I am very humbled by those who nominated Bow Tie Law. My blog received enough nominations to be one of the 250 legal blogs in this contest out of 2,000 potential nominees.

There are many excellent blogs in the Technology category, including ones by very dear friends. If these blogs are not on your reading list already, I encourage you to check them out.

Voting is going on until October 9, 2015 to select the very best of the best in the different categories. The competition has an open voting format that allows one vote per blog. Each blog will compete for rank within its category, while the three blogs that receive the most votes in any category will be crowned overall winners.

Please check out all of the excellent blogs that have been nominated. If you enjoy Bow Tie Law, you can vote for my blog in the Technology category at

Dropbox Non-Party Subpoenas and the Business Records Rule

Alternative Title: Thank God Dropbox Does Not Need to Provide a PMK Witness Every Time Somebody is Sued

Dropbox was subpoenaed as a non-party to provide a deposition witness to testify about its business, practices, and technology, in a Texas lawsuit. All of this information is publicly available on Dropbox’s website. The Court [rightly] quashed the subpoena. Intermarine, LLC v. Spliethoff Bevrachtingskantoor, B.V., 2015 U.S. Dist. LEXIS 112689, *5-6 (N.D. Cal. Aug. 20, 2015).


There are over 400 million Dropbox users who save over 1.2 billion files to Dropbox every 24 hours. Intermarine, at *6. It would be highly chaotic and costly if Dropbox had to have witnesses be deposed every time a Dropbox user was in litigation.

Dropbox argued that the deposition subpoena required them to testify about information that is available on their website, thus a witness was not required. Id. Moreover, a declaration could explain the nature and format of the data in Dropbox’s third-party production that would comply with the Federal Rules of Evidence for admissibility. Id.

The demanding party did not agree, arguing that four activity logs were created by Dropbox when the adverse party uploaded files, thus Dropbox needed to produce a witness to explain those logs. Id. 

The Court did not agree with the demanding party and granted Dropbox’s motion. Intermarine, at *7. The Court explained the records were admissible as business records under Federal Rule of Evidence Rule 902(11). Id. The purpose of the business records rule “was intended to obviate the need for live witnesses to parade to the stand to support the admission into evidence of business records.” Intermarine, at *7, citing United Asset Coverage, Inc. v. Avaya Inc., 409 F. Supp. 2d 1008, 1052 (N.D. Ill. 2006).

The Court explained:

Dropbox attests the records were kept in the course of regularly conducted activity by Dropbox and were made in the course of regularly conducted activity as a regular practice by Dropbox. See Tyler Decl., Ex. I; see also Fed. R. Evid. 803(6). The Federal Rules of Evidence were designed to promote accuracy in factfinding and exclude documents that might be false or otherwise unreliable. As Dropbox provided the required authentication, Intermarine’s request for further testimony is duplicative and unnecessarily burdensome. Although Intermarine argues Defendants may dispute the authenticity of the records at trial, they are admissible with or without Defendants’ cooperation.

Intermarine, at *7-8, internal citations omitted.

As for the issue of the public information on Dropbox’s website on how files are stored and maintained, the Court stated, “Intermarine is not entitled to elicit expert testimony from Dropbox, particularly where it can retain its own expert witness to explain these issues.” Intermarine, at *9.

The Court concluded the opinion with the public policy that Courts are to protect non-parties with discovery in litigation. Id. The Court explained that Dropbox had complied with the Federal Rules of Evidence and no further testimony was needed. Intermarine, at *9-10.

Bow Tie Thoughts

It would be insane if Dropbox,, or any other file sharing service had to produce PMK witnesses every time one of their users was producing discovery. If that were the rule, those companies would need to embed lawyers and witnesses at every courthouse in the country. It would be easier figure out how to “file share experts” to in every lawsuit. It would be like requiring expert witnesses to explain how paper is made in every lawsuit [best read in a Neil deGrasse Tyson voice]: “First, a lumberjack cuts down a tree, and mighty oxen drag the trunk down to the river, which is then floated down river to the mil, and then…”

Forensic companies have developed collection tools to capture files and data uploaded to Dropbox and Having a party’s expert perform the collection and declaration explaining the process would likely be far more efficient then seeking third party discovery for the cloud service providers. Moreover, this expert could testify if needed without the added challenges of subpoenaing a non-party to the lawsuit.

Judge James Browning on eDiscovery “Technical Specialists”

In a case over bad faith litigation and whether costs were recoverable, a Court recognized the importance of those who perform eDiscovery work. The crux of the issue is that clerical work is not a recoverable cost, while the work a paralegal does to support an attorney is recoverable. Would the work performed an eDiscovery professional be recoverable like a paralegal’s work?


United States District Court Judge James O Browning stated:

…while technology specialists’ duties are not strictly legal in the traditional sense, the Court believes that these technicians provide meaningful value to law firms and, ultimately, clients during litigation; those contributions should not go overlooked. In time past, young attorneys would select documents that paralegals would incorporate into specially created databases — e.g., “hot docs,” “Top 100 documents,” or documents specific to a particular witness or witnesses — and maintain them for the senior lawyers’ review. As technology developed, however, paralegals began uploading documents into databases which could then be searched and sorted using queries. Now so much is on ESI; the technology specialist helps produce documents and keep documents produced by other parties. These technology specialists now do some of the specialized work that paralegals used to do.

General Protecht Group v. Leviton Mfg. Co., 2015 U.S. Dist. LEXIS 109981, *95-96.

Judge Browning was just getting warmed up. The Court went on to say:

There is no sound reason to pay paralegals for document work in the 1980s and 1990s, but not technology specialists doing similar work in 2015 just because their job titles are different. The specialist is improving the quality of work product, and as a sensible approach, the case law should not penalize the practice in the legal community that is becoming more technology-based and efficient. Specialists may actually save money. Having a technology specialist for a single case is not unusual, and it can be more efficient sometimes to hire a specialist for a case than use a paralegal. To do otherwise would be to allow the case law to lag behind the introduction of document management products and databases in the twenty-first century. The proof that technology specialists are now doing legal work is that law firms hire technology specialist employees. Many years ago, few firms had paralegals; now it is the rare firm that does not have one or two. Forty years ago, few firms had specialists to manage documents; now, firms with twenty or more lawyers can justify hiring technology specialists for the job, and smaller firms may hire them on a contract basis. Today, when a client hires a law firm, it is hiring its paralegals as well as its technology specialists. When marketing their work, firms often quote their paralegal rates with their attorney rates. Document management is in great part what law firms do today, and clients expect to pay for that work. It is only fair for courts to follow the legal profession’s development of new means of providing high-quality representation and recognize technology specialists’ contributions as being legal in nature. The Court would therefore include technology specialist fees in its calculation of attorneys’ fees, subject to the same restrictions placed on other attorneys’ fees, i.e., that the technology specialists work pertained to the lawsuit at hand, and the hours were reasonable.

General Protecht Group, at *96-98, emphasis added.

Wow. Judge Browning gave one of the most practical descriptions on the value of having “technical specialists” help on the eDiscovery in a case. In the Northern District of California, this title could be “eDiscovery Liaison.” Some firms might even give this person titles such as “Director of Litigation Support” or “eDiscovery Counsel.”

Handling electronically stored information takes skill. Lawyers cannot upload self-collected PSTs from a client and review the data into Outlook. The data is likely corrupted from an indefensible collection. Moreover, using Outlook for document review is like crowbar for dentistry; it is not the intended use of the tool.

Attorneys need to understand how to identify relevant electronically stored information for preservation, develop defensible collection methodologies, and competently conduct review in a reasonable manner for everything from a reasonable inquiry to initial disclosures to production. Being able to execute a litigation workflow is not just required for defensibility, but the competent practice of law. Most lawyers require having someone assigned to manage these tasks under the attorney’s direction. Regardless of title, seeing a Judge state that “technical specialists” improve the quality of work product for efficiency is outstanding for the practice of law.