Playing with Fire: Producing ESI as Paper

“…Revonet’s producing the e-mails only in hard copy played with fire. ”

Magistrate Judge John Facciola, Covad Communications Company v. Revonet, Inc.

 I have blogged on parties failing to state a form of production in prior postings and producing parties attempting to produce ESI as paper or non-searchable TIFFs

 In Covad Communications Company v. Revonet, Inc. 2008 U.S.Dist. LEXIS 104204 ( Dec. 24, 2008 ) the Defendant Revonet insisted that it be allowed to produce email messages in hard copy or as TIFF, provided the Plaintiff Covad paid for the necessary deletions of privileged email messages, because the Plaintiff Covad did not specify the form of production of the email messages in their request.   

 The comedy of errors leading to this discovery “car crash” as Judge Facciola called the debacle, included following:

  • The parties not following the Federal Rules of Civil Procedure’s requirement to meet and confer on the form of production;
  • Not Stating the Form of Production in the Request, and;
  • Sloppy boilerplate production instructions in the discovery request preamble.

 I would also add the possibility the law firms did not understand their litigation support software or were not using it to the product’s full capabilities. This point is not discussed in the opinion and will be the subject of a separate posting on production workflow.

 Despite the ambiguous instructions in the discovery request where someone could argue the request allowed several production formats, the Court stated, “no reasonable person can honestly believe that hard copy is one of them.”  The Court further stated:

 For hard copy to be an acceptable format, one would have to believe that Revonet, in its day to day operations, keeps all of its electronic communications on paper. There is no evidence in the record that Revonet operates in this manner, and no suggestion that such a practice would be anything but incredible.

 The Court ultimately ordered the production of the email messages in native file format.  The estimated cost of production was under $2000. As Judge Facciola stated, producing ESI as paper is playing with fire.  While the burn in this case was minor, lawyers would be well served by 1) Discussing Form of Production at the Meet & Confer 2) Specifying the form of production in their request 3) Understanding the abilities of their litigation support solutions.

Standards to Identify Anonymous Posters for Defamation

The internet is creating emerging legal issues, from jurisdiction to discovery. The identification of anonymous bloggers-posting defamatory statements on the internet–is one of those issues.  

Judge Rory J. Bellantoni, Ottinger v. Non-Party The Journal News

In Ottinger v. Non-Party The Journal News, 2008 N.Y. Misc. LEXIS 4579 (N.Y. Sup. Ct. 2008), the Plaintiff sued Doe Defendants for anonymous posts on a newspaper website.  The anonymous postings on the newspaper blog claimed that the Plaintiffs bribed local government officials, had fraudulent deeds and other less than flattering statements.

guy-with-keyboardThe Plaintiff brought a third party subpoena against the newspaper to identify the anonymous posters.  While the posters could not be identified by viewing the newspaper blog, the individuals who made the postings had to create screen names in order to make any comments on the newspaper blog. 

The newspaper challenged third party subpoena to identify specific users who left the defaming messages.

 The Court outlined the following test to identify the anonymous posters:

 1. Plaintiff had to undertake efforts to notify the anonymous posters that they were the subject of a subpoena and withhold action to afford the fictitiously-named defendants a reasonable opportunity to file and serve their opposition. 

 2. Plaintiff had to identify and set forth the exact statements purportedly made by each anonymous poster than plaintiff alleges constitutes actionable speech;

 3. Court needed to review the complaint and all information to determine whether plaintiff has set forth a prima facie cause of action against the fictitiously-named defendants and sufficient evidence to support each claim; and

 4. The court had to balance the defendant’s First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant’s identity to allow the plaintiff properly to proceed.  See, Ottinger, 5.

 Points 1 and 2 were accomplished by posting the on the newspaper blog the statements at issue and the screen name that posted the statement.  The Plaintiffs had to specifically post for Point 1 (a) the existence of the special court proceeding to identify the anonymous posters, (b) the relief Plaintiffs’ sought, and (c) the fact that any individual who believed that their rights might be affected could seek to intervene anonymously in the special proceeding.  Ottinger, 5-6, citing Dendrite International v. Doe 342 N.J. Super. 134, 775 A.2d 756 (2001).

 The Court found the Plaintiff met the remaining requirements, stating that the complaint established Plaintiffs had set forth a prima facie cause of action. The Plaintiffs also produced sufficient evidence supporting each element of its cause of action, except that of constitutional malice. Ottinger, 6.  The court found the constitutional malice element would be difficult to prove without knowing who made the defamatory postings, thus the Plaintiffs did not need to meet the constitutional malice requirements for the early disclosure. 

 In this case, the newspaper had to produce any information it had on the identities of anonymous posters.  One does not need to spend much time surfing on news articles or social networking sites to see questionable insults between posters on news articles.  While people expressing themselves is protected by the First Amendment, online actions that rise to the level defamation will likely be more common with lawyers and judges facing these issues on a regular basis.

Conversion of Intangible Property

 The traditional rule for conversion is any unauthorized act which deprives a person of “his property permanently or for an indefinite amount of time.”    Blacks Law Dictionary, Sixth Edition, citing Catania v.Garage De e Paix, Inc., 542 S.W.2d 239, 241. 


Today, personal information such as banking information is stored on laptops, credit card numbers are “remembered” by online services and iPhones contain a verity of personal information.  Can intangible electronically stored information be subject to conversion?  

 Courts have allowed causes of action for conversion of electronic information or “intangible property.”  Cases such as Thyroff v.Nationwide Mut. Ins. Co., 2007 NY Slip Op 2442 found the state of New York has a common law cause of action for conversion of electronic information.  The Court stated:  

 …it generally is not the physical nature of a document that determines its worth, it is the information memorialized in the document that has intrinsic value… In the absence of a significant difference in the value of the information, the protections of the law should apply equally to both forms–physical and virtual. Thyroff v.Nationwide Mut. Ins. Co., 2007 NY Slip Op 2442, 9 (N.Y. 2007).

 The common law remedy of conversion of intangible property is highly similar to, but different than, the statutory remedy of identity theft.  California law defines identity theft as the “unauthorized use of another person’s personal identifying information to obtain credit, goods, services, money, or property.”  Cal Civ Code § 1798.92(b).   In short, conversion is the act of depriving someone of their property, where identity theft is the act of obtaining a benefit from it.

 There could be many differences in the application of these common law and statutory remedies, such as a music artist being deprived the original music created on their laptop.  In that situation, conversion is more approrpriate more appropriate then identity theft.  However, states that have not enacted identity theft statutes might be able to find common law remedies for conversion of electronically stored information for those who are the victim of digital torts.

Back on the Record: Tips on Deposition Preparation with Technology

I have taken and defended a good number of depositions.  Preparing for deposition requires thoroughness, thoughtfulness, and not being tied to your question outline like a student actor reading a script.  Whether you are “old school” or “new school,” there are many ways to enhance your deposition practice with litigation support software.

There are many effective ways to prepare for a deposition.  Here are tactics I have used with and without technology:

Option 1: No Deposition or Litigation Support Technology

office-stressDiscovery is maintained as paper in boxes or a document depository.

Documents from the repository are selected and copied for the deposition.

The lawyer attends the deposition with a trusted Redwell Folder under their arm.

The question outline is prepared on a yellow legal pad.  More software friendly lawyers will use Word or Wordperfect for their outline.

This is a tried and true method that worked for lawyers from Clarence Darrow’s time to Gerry Spence.  If you are organized and keep your exhibits in order, this is an effective way to depose a witness.

The downside: if you have a lot of paper exhibits, you can lose time wadding through a stack of paper if you want to take an exhibit out of order.  Additionally, finding a document not selected as an exhibit you want to use in response to answer might require time to go off the record and check the document depository.

Option 2: Limited Use of Litigation Support Technology

Many law firms today use CT Summation iBlaze, LexisNexis Concordance, LiveNote or other litigation support software (LSS) to manage discovery.  These are all fine tools with their own strengths in preparing for a deposition.

The “hybrid” approach is using litigation support software instead of a document depository.  Searching for a document across a database is extremely faster than sending an associate attorney on a spelunking expedition to the document depository.

Lawyers and paralegals preparing for deposition can search for responsive exhibits in their LSS database.  These searches might be based on authors, recipients or date ranges on emails, faxes, or letters.


Exhibits sets are then printed for the deposition and the rest of the process follows Option 1.

Option 3: Full Use of Litigation Support & Trial Presentation Technology

Going “full technology” is used by lawyers who have successfully deposed witnesses with Options 1 and 2.  They are comfortable with technology and understand how to leverage it to their advantage.

As in Option 2, associate attorneys or paralegals search for deposition exhibits in the firm’s litigation support software.  Documents selected for deposition exhibits are marked as a “Hot Document” or noted in the database.


Many LSS programs allow users to create folders, such as “Defense Witness” or “Plaintiff PMK.”  Documents can be selected for witness folders as a way to organize exhibits.


While preparing deposition exhibits, attorneys can prepare their deposition outlines with linked exhibits in their litigation software.  This organization helps focus the deposition and allows the deposing attorney to move beyond a yellow legal tab.  Coupled with a real time feed from the court reporter, a lawyer can see their question outline and the witness’s answers at the same time.


Sophisticated techno-attorneys can conduct a deposition without paper exhibits.  Instead of a Redwell Folder full of paper, exhibits can be labeled digital on a DVD.  Digital copies can be given to both the court reporter and opposing attorney.

In CT Summation, this can be accomplished with a Browser Briefcase for non-CT Summation users or Summation Briefcase Format file (SBF) for Summation users.  Either format can be provided to opposing counsel and the court reporter at the deposition.


Exhibits can be numbered in advanced in the litigation support program.  The court reporter can mark the DVD/CD/External Hard drive with the exhibits as “Plaintiff Exhibits 1 to 37” or whatever is appropriate.

Conducting a paperless deposition requires trial presentation software to display the exhibits for the witness.  This would include such products as Trial Director by inData.


A Note on Court Reporters

Court Reporters utilize technology with real time transcription, synced deposition exhibits and many other services.  Lawyers can assist their court reporters by providing a key term list prior to the deposition, so court reporters are not trying to figure out how to spell complex scientific jargon, party names or other terms of art on the fly.

Lawyers can increase their effectiveness during the deposition with a real time feed from their court reporter (for example, LiveNote, CT Summation and other fine products).  The deposing attorney can track answers as they come in, catch potential transcription errors and effectively compare prior answers for consistency from the witness.

For deposition review, ask the court reporter for a transcript with linked exhibits and synced video (if video recorded).  Depending on your transcript review tool, these will have different names, such as LiveNote Evidence Format (LEF) or CT Summation Briefcase Format (SBF).

Linked exhibits are useful in checking on which exhibit the witness is discussing.  More importantly, the associate or paralegal doing deposition review does not lose time jumping from the back of a printed deposition’s exhibits to the text.

There are many ways to take a deposition, be it with the Redwell or a laptop under your arm.  What matters is to look at the tools your firm employs and find the best deposition strategy for you.

Mock Motion in Limine Arguments to Exclude ESI

Michael Berman, Esq., of Rifkin, Livingston, Levitan & Silver, LLC, argued to excluded email messages and a voice mail at the CT Summation Best Practices Summit, held in Washington, DC on May 20th, 2008.

 The Best Practices Summit included a mock motion in limine hearing.  In the fictional case, the Plaintiffs attempted to prove breach of contract and break of fiduciary duty with email messages, native file contracts and a voice mail.  The Defendants sought to exclude these exhibits on admissibility grounds.

 Watch Mr. Berman’s arguments to see the admissibility challenges to the electronically stored information.  Also note, on the right screen you can see CT Summation iBlaze with a Real Time transcript and on the left screen the exhibits presented with Trial Director by inData Corporation. 

SURPRISE! First Amendment e-Discovery Objections!




The Discovery of Electronically Stored Information has many surprises, ranging from stating the form of production, the inadvertent production of privileged material and defensible search terms.  A very surprised lawyer fought a First Amendment objection they probably did not see coming during a deposition. 


In Quixtar Inc. v. Signature Mgmt. Team, LLC, 2008 U.S. Dist. LEXIS 56593 (D. Nev. July 7, 2008), the Plaintiff claimed the Defendant launched an internet campaign to induce the Plaintiff’s employees to defect to Defendant’s company.  The Plaintiff claimed the Defendant launched multiple websites and blogs directed the Plaintiff’s at sales people to leave the company.


During deposition, a defense witness was questioned on his company’s blogs.  Plaintiffs counsel inquired whether there were other blogs that the witness had set up and maintained.  The witness responded “yes” and Defense counsel instructed the witness not to answer any questions regarding websites in a separate lawsuit on the basis of the First Amendment privilege.  


Defense counsel claimed the First Amendment privileged applied to the witness’s involvement or non-involvement in setting up other websites, video postings, and whether the witness posted under a pseudonym. 


What followed was a very detailed discussion on First Amendment Rights and Anonymous Posting on the Internet vs. State Tort Law. The analysis heavily focused on First Amendment rights, balancing tests for identifying anonymous parties and standing requirements to bring third party objections. 


The principle of anonymous speech dates back to such examples as Alexander Hamilton, John Jay and James Madison in the Federalist Papers or then Vice President Thomas Jefferson and James Madison (again) secretly attacking the Alien & Sedition Acts in the Kentucky and Virginia Resolutions.  The United States Supreme Court has protected this right, stating that, “Anonymity is a shield from the tyranny of the majority,” McIntyre v. Ohio Elections Commn, 514 U.S. 334, 357, (1995).  Additionally, the right to speak anonymously extends to the Internet.  Doe v. 2TheMart.Com, Inc., 140 F. Supp. 2d 1088, 1092 (W.D.Wash 2001). 


The District Court found that the Defendant did not have to answer deposition questions on blogs until anonymous third parties had an opportunity to contest the discovery of their identities under pseudonyms and show they had legal standing to raise their objections.


To say the intersection of the First Amendment, Anonymous Posting and e-Discovery is complex is an understatement.  With the relative ease a website or blog can be created, lawyers should consider if their clients have any First Amendment issues warranting protection. Conversely, no one wants to inadvertently stumble into one of these disputes in a deposition without understanding the issues. 

The People Would Like to Thank the Blogger for His Jury Service

 My friends laughed hysterically when I had jury duty last year.  Apparently, the idea of a lawyer having to do his civic duty is funny.  And yes, for the record, I did wear my bow tie.


 During the jury selection process, my exchanged with the judge went as follows:


American judgeJudge: Sir, what is your career?


Bow Tie: I am a lawyer, your Honor.


Judge: I had a feeling.






I was told by one of the other dismissed jurors that both the prosecutor and defense counsel were shaking their heads “no” the entire time I was answering the Judge’s questions on technology in the courtroom, e-Discovery and my job experience.  The Prosecutor apparently did not like the fact I did a little criminal defense at the beginning of my career and I was promptly thanked for my service. 


 Litigation support software, trial presentation technology and Web 2.0 are not just impacting how we practice law today, but jury selection as well.  There is even a specialty industry forming in jury research that checks jurors’ Facebook and MySpace pages to learn more about those jurors. [1] 


 There have also been attempts to dismiss jurors for their blogging.  In Gregoire v. City of Oak Harbor, 2007 Wash. App. LEXIS 2929 ( Wash. Ct. App. Oct. 29, 2007 ), an attorney tried to excuse a juror for a blog.  The attorney discovered a blog written by a juror, in which the juror blogged about his experiences dealing with suicide in his job as a youth minister.


 During jury deliberations, trial counsel brought the blog to the trial court’s attention and asked that the juror be excused, arguing that the blog was inconsistent with the juror’s questionnaire. The juror-blogger had answered “no” to the question regarding whether he had ever been depressed or suicidal.


The trial court found that the blog comments regarding the juror’s encounters with suicide in his work as a youth minister were not inconsistent with the juror’s questionnaire.  Moreover, the blog did not show any bias, thus a challenge for cause would have been inappropriate.[2]   


 Attorneys would serve their clients well by asking prospective jurors if their blogging practices relate to any issues of the lawsuit during voir dire.  A juror’s activity on Web 2.0 might be totally harmless and not relevant to the lawsuit, but it never hurts to ask.


[1] Julie Kay, Social Networking Sites Help Vet Jurors, The National Law Journal, August 13, 2008,

 [2] Gregoire v. City of Oak Harbor, 2007 Wash. App. LEXIS 2929 ( Wash. Ct. App. Oct. 29, 2007 ),

Deposition Review with CT Summation iBlaze Color Highlighting

You can open my old Civil Procedure course book and see I usually highlighted cases with three colors: Blue for the “Issue,” orange for “Rule,” yellow for “Analysis” and a note in the margin for the “Conclusion” (IRAC for the non-lawyers). Law students have been highlighting and writing in textbooks since the “Paper Chase,” be it in search of “peppercorns” in Contracts cases or untying the Gordian Knot in Asahi Metal Industry Co., v. Superior Court.

 The latest version of CT Summation iBlaze allows for issue color highlighting in deposition review. [1] The new feature in CT Summation iBlaze 2.9.1 allows for a lawyer or paralegal to color code all of their issues, select favorite issues (most likely the key issues or facts) or assign a specific color to a user.


 For some background, I first started using CT Summation iBlaze back with version 2.6. I later worked for CT Summation for two and a half years demonstrating the product at seminars and tradeshows.

My main assignment when I used CT Summation iBlaze was summarizing 60 depositions and reviewing documents. While nothing beats the analysis of a good note about a deponent, the color highlighting feature would have been very helpful for the managing attorney to visually look for issue colored excerpts on reviewed transcripts.

 Here is how I would use the new transcript highlighting in deposition review:

 Assign colors to 1 to no more than 5 issues as “Favorites.” For example, if I were representing a plumber in a construction defect case, I would have an issue for “Plumbing Work” and assign the color blue. I would assign “Damages” the color red. In that case, I might have issues based on the Plaintiff’s causes of action, the plumber’s defenses, facts relating to the other subcontractors and the damage to the property. I would avoid “color confusion” by assigning every issue a color.

 I prefer my deposition summaries to be each question and answer compressed into one statement for review.  [2] To accomplish this in CT Summation iBlaze, I would select the deposing attorney’s question and the deponent’s answer. I would then do a right click to the left of the transcript line number and select the “Add Note” option.


Once the Note appears, I would then type in my summary of the question and answer. I would then Issue code as needed for each note. My “Favorite” color coded Issues will appear if I have selected the option to “Show Only Favorites.”  


The above would enable the reviewer to skim the transcripts visually for the colors Blue or Red guide their review. 

Those reviewing the deposition summaries may do so in CT Summation or a print out that includes the color highlights and notes. Additionally, you could print the notes creating a true summary of the deposition as paper or as a PDF.

 There are many ways to conduct deposition review in CT Summation. The above are just a few strategies for deposition review. Nothing will ever top the ability to do integrated searches across multiple transcripts or organize notes by issues. However, the color highlighting is a helpful new tool for deposition review.


[1] In the interest of full disclosure, I worked at CT Summation for 2.5 years.

[2] There are many ways to summarize depositions in CT Summation iBlaze, from copying excerpts into Notes, Digesting and many other combinations.

What Happens When the Requesting Party Does Not State a Form of Production?

Federal Rule of Civil Procedure Rule 34 allows for a requesting party to state the form of production in their request. In the event a requesting party does not state the form of production, the responding party can state the form of production in their reply. However, if no party states the form of production, the ESI must be produced in the form it is ordinarily maintained or in a reasonably usable form.

So, how does this all work when the request does not state the form of production? Can the responding side product ESI as paper and run away laughing like giddy children as their opponents weed through a semi-truck full of documents?

Short answer: NO.

Federal Courts have applied the Advisory Committee notes in applying Federal Rule of Civil Procedure 34(b) in form of production disputes. Case law has held that a party may produce ESI in a “reasonably useable form,” but ESI ordinarily kept in electronically searchable form “should not be produced in a form that removes or significantly degrades this feature.”  In re Payment Card Interchange Fee, Slip Copy, 1007 WL 121426 (E.D.N.Y.), 4, citing Fed.R.Civ.P. 34(b), 2006 Amendment, Advisory Committee’s Note.

Judge Waxse’s opinion in White v. The Graceland College Center, 2008 U.S. Dist. LEXIS 63088 ( D. Kan. Aug. 7, 2008 ) also addressed the issue of not specifying the form of production. In White, the plaintiff did not specify the form of production and the defendants converted native file email messages and attachments to PDFs and then printed the PDFs as a paper production.

The Court found that the Defendants failed to produce the emails and attachments in either the form in which they are ordinarily maintained, or in a “reasonably usable form,” as required by Rule 34(b)(2)(E)(ii). The producing party was compelled to reproduce their production in native file format. The court relied on the Advisory Committee notes to Rule 34, stating that “Defendants’ option to produce in a reasonably usable form does not mean that they are free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for Plaintiff to use the information efficiently in the litigation.

Case law has consistently followed the Advisory Committee Notes when a party fails to specify a form of production and the producing party attempts to remove the “search-ability” of electronically stored information. While converting to PDF and then printing is an extreme example, Courts have had little tolerance for parties making productions difficult or burdensome to use in litigation.