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.