7 thoughts on “Don’t Argue Imaginary ESI Production Problems

  1. A good synopsis – one nit to pick. The distinctions between text derived from OCR, text extracted from the informational content of the data and metadata is muddled.

    In simple terms, any information content has three layers:

    1 – what a user sees and can read on the screen, often reduced to TIFF or PDF image formats (the user rendering)
    2 – the underlaying machine readible text layer which can either be extracted or recreated by OCR of an image
    3 – metadata, either embedded in the file/object or related to the file in the file system from which it was collected.

    Until lawyers understand the nuances of these layers, disputes like this will continue – See also Craig & Landreth Mazda vs Mazda Motor of America, Inc. SD Ind Np.: 4:07-CV-134 SEB-WGH (7/27/2009)

    • Thank you for your comment. I never understood that either. I believe “zealous advocacy” does not equal bullying or obstructionism.

      Clients may accept these actions less when they pay for failed oppositions to a motion to compel.

  2. Let’s look at this realistically. Often the client resists the proper collection method and there is no concrete guidance established in the case-in-chief to point at to lever them. So the firm is playing catch-up from day one. It sometimes takes a loss of a motion to compel and the extra effort the client has to make to finally do it right to shake them up. Sometimes the metadata is suspect to begin with because the client does not manage it at all. Nobody wants to admit that up front. Sometimes it is pure obstructionism and gamesmanship from people who think they know the score (text is text, right?) and who in fact don’t.

    We are still in a period of churn, like the dark ages right before the enlightenment. As Don Swanson said, some navies have slaves, oars and fire arrows while others have square riggers and cannon. Whose gonna win?

  3. As a former trial lawyer myself, I know lawyers fear turning over evidence they have not personally reviewed. The games may be a cover to buy counsel time to review it all or to think harder how the data in the requested format could come back to haunt the client (which if it did would necessitate an explaination to the client why it was produced that way in the first place). A court order, however, absolves the lawyer.

  4. Pingback: How to Look Like a Rube in Three Easy Steps | BLLAWG

  5. Pingback: Floppy Disk Wars: Form of Production & Computer Battles from the 1980s « Bow Tie Law’s Blog

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