Parties should be very careful when Courts start referring to a party’s views on electronically stored information as “dismissive.” More importantly, if a party boasts that they use a litigation support system on their website, don’t be surprised if the Court discusses that fact with the URL in an opinion.
A Discovery Brawl
In a lengthy opinion that can best be described as a discovery brawl, the Court weighed in on numerous discovery disputes. The Defendants in the case had a cavalier view of discovery and proudly sang their own praises for producing “over 21,000 documents” to their opponents. Camesi v. Univ. of Pittsburgh Med. Ctr., 2010 U.S. Dist. LEXIS 50769 at *11 (W.D. Pa. May 24, 2010).
The Court’s view was slightly different:
While Defendants have repeatedly trumpeted their production to date of “over 21,000 documents,” this seems hardly an overwhelming number given the complexity of this case and the number of parties involved. In their Firm website, Defense counsel emphasize their “broad experience in complex, multifaceted civil litigation,” including their use of “computerized document management, an invaluable tool for organizing the massive number of documents generated in complex litigation and helping to reduce the cost of litigation.” at *11.
Don’t be Dismissive of e-Discovery
The Court questioned whether the Defendants had taken their e-Discovery obligations seriously and described the Defendants’ view as “seemingly dismissive” in their responses to the Plaintiffs’ ESI proposals. Camesi, at *23-24.
The Court ordered the parties to meet and confer over their disputes, but gave the Defendants some very specific “guidelines” that sounded more like orders. Camesi, at *23.
The Defendants were required to “ensure” that all electronic files were produced in a searchable format. Camesi, at *23. The Court went on to state:
Preferably, and absent a clear showing of substantial hardship and/or expense, Defendants shall supplement their production by reproducing ESI in its native format. Although a clear showing of undue hardship and/or expense may excuse Defendants’ production in native format, the fact that such a production may be more useful or cause less expense to Plaintiffs obviously will not.
Camesi, at *23.
Whatever arguments the Defendants waged against producing metadata fell on deaf ears. The Court found that the Defendants’ production of metadata would “promote the interests of justice,” especially given the Defendants’ electronic storage systems. Camesi, at *23.
The parties were not only required to meet and confer with 7 days of the Court Order, but “to seek input from persons possessing technical expertise to assist them” if necessary. Camesi, at *24.
Bow Tie Thoughts
This case has several lessons learned:
1) If you state knowledge on your website, don’t be surprised the Judge has read up on you.
2) If you claim complex litigation skills, don’t come off as dismissive about e-discovery.
3) If the Judge orders you to ensure the electronically stored information is produced in a searchable format, do it.
On a serious note, most lawyers do not have computer engineering degrees or have in-depth knowledge on the processing of electronically stored information. Working with an expert who understands the processing of ESI, plus defensible data reduction strategies, will only help an attorney effectively represent their clients in a meet and confer over electronically stored information.