Native File for Cloud Email

A producing party claimed that it was “impossible” to produce Gmail in Native File Format because, “Gmail account user and Google does not permit its users to copy e-mails and documents in native format.” As such, the Defendant produced the gmail emails by forwarding them to the Plaintiff. Sexton v. Lecavalier, 2014 U.S. Dist. LEXIS 50787, 5-8 (S.D.N.Y. Apr. 11, 2014)

The Plaintiff disagreed and countered the emails could be produced by either 1) downloading the messages to a program like Outlook or 2) Gmail e-mails that have been displayed [6] in their “original” format by clicking “show original” on the Gmail website and subsequently saved as PDF files. Sexton, at *6.

The Plaintiff’s declaration explained in detail methods for exporting email. Id.

The Court stated that even though producing “cloud” email might be difficult, that did not “absolve him of his obligation to produce documents in a reasonably useable format.” Sexton, at *6.

The Court proceeded to recount the value of metadata and production methods to prevent the degradation of valuable metadata. Sexton, at *7, citations omitted. The Court stated the following on the Defendant’s production obligations:

In the context of a request for native e-mails stored with a third-party provider, a functionally native format that preserves relevant metadata, such as those formats that can be generated through an e-mail client like Microsoft Outlook or through e-discovery collection software, should generally suffice.

Sexton, at *7-8.

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Bow Tie Thoughts

Attorneys have to get used to the reality that collecting cloud email will require the use of either a computer forensic expert. There are multiple ways to collect cloud email, with one method being to download the email to Outlook, followed by the email then being defensibly collected. Other applications can collect directly from the cloud. Regardless of the method used, the custodian should not do the collection. Self-collection often results in self-selection. Self-selection can end with relevant email not being produced.

 

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Don’t Argue Gmail is Not Reasonably Accessible

Can a producing party argue for cost-shifting to the defendant based on proportionality for the production of work-related emails on a plaintiff’s gmail account? Owens v. Clear Wireless LLC, 2014 U.S. Dist. LEXIS 26698, 4-6 (D. Minn. Mar. 3, 2014).

Short answer is no, because the emails are not inaccessible to the producing party.

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The general rule in over the cost of producing discovery falls on the producing party. Owens, at *4, citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358, 98 S. Ct. 2380, 57 L. Ed. 2d 253 (1978).

Discovery can be limited if “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” Owens, at *5, citing Fed. R. Civ. P. 26(b)(2)(C)(iii). Cost-shifting can be imposed if the data sought by the producing party is not reasonably accessible. Id, citing Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 283-84 (S.D.N.Y. 2003).

The Plaintiff’s emails in a gmail account were accessible by the Plaintiff. Data must be not reasonably accessible in order for any cost-shifting to be considered. Owens, at *6.

Bow Tie Thoughts 

Email messages stored in a Cloud, whether it is Yahoo, Gmail, or some other service provider, are not “not reasonably accessible” to the producing party.

Computer forensic experts have determined multiple ways to capture cloud-based email. This can include having the email messages downloaded to a computer in Outlook, to applications that preserve the email from the cloud. Just because a lawyer needs to retain someone to perform the work, does not make the email “not reasonably accessible.”

Rule 34 and TIFF Productions in the Clouds

CloudComputingHandGerman v. Micro Elecs., iNC., is an employment case that involved discovery disputes centering on the Plaintiff’s mitigation of damages, including among other issues, the Plaintiff’s calendars and online activity, including blogging and records-keeping.

The Plaintiff’s attorney claimed the Plaintiff had hardship in responding, because she could not afford to make copies, and her “advancing carpal tunnel [made] it increasingly difficult for her to do anything with her hands or writs, including the clicking of a touchpad on a [laptop], and even the advancing of a screen on her iPad.” German v. Micro Elecs., iNC., 2013 U.S. Dist. LEXIS 4594 (S.D. Ohio Jan. 11, 2013).

The Plaintiff produced information she had copied from blogs and websites, which were then pasted into an email and printed by her attorney. The production was over 100 printed pages. The Court also noted that this production did not accurately identify the source of the text. German, at *18.

The Defendants considered the production deficient, because “it was not guaranteed to capture the original and complete text, formatting, and images of a blog or website.” The Defendants suggested production as PDF’s copies or a production format that was “reviewable and captures the documents in their original format.” German, at *18-19.

The Plaintiff claimed production as PDF screenshots was unduly burdensome and was not required by the Federal Rules of Civil Procedure, because the blog posts and other ESI were “ordinarily maintained” on external servers within multi-tiered web pages. As such, creating PDF’s would be time and cost-intensive, in addition to not being the form they were ordinarily maintained. German, at *19-20.

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The Court found the Plaintiff’s claim the production complied with Rule 34(b)(2)(E)(ii) to be “disingenuous,” because “It [was] beyond dispute that the one-hundred-page email document with copied and pasted excerpts from blog and website postings is not in the form “in which it is ordinarily maintained.'” German, at *23, citing Fed. R. Civ. P. 34(b)(2)(E)(ii).

The Court also explained the production was not “in a reasonably usable form,” because the production stripped “the entries of their original and complete text, formatting, images, and likely the source.” Id.

The Court noted N.D. Ohio L.R. App. K, Default Standard for Discovery of Electronically Stored Info. (“E-Discovery”), Standard 6, which states an “acceptable” default production format is a static image, not native format with accompanying metadata. German, at *23-24, citing In re Porsche Cars N. Am., Inc. Plastic Coolant Tubes Prods. Liab. Litig., 279 F.R.D. 447, 449 (S.D. Ohio 2012). (The Court noted that the ESI and metadata needed to be preserved and could be produced if there is a particularized need. German, at *24.)

The Court held the Plaintiff should have produced the online content as static images, because no form of production had been stated by the Defendants. Id.

Bow Tie Thoughts

The Court’s statement regarding N.D. Ohio L.R. App. K, Default Standard for Discovery of Electronically Stored Info. (“E-Discovery”), Standard 6, that static images are a default when no form of production is stated, seems to go against the Federal Rules of Civil Procedure, and a volumes of case law, which state the searchable features of native files cannot be degraded in a discovery production. Moreover, the Court in Porsche stated, “This Court has expressed a preference for the production of electronically stored information in its native format.” In re Porsche Cars N. Am., Inc. Plastic Coolant Tubes Prods. Liab. Litig., 279 F.R.D. 447, 449 (S.D. Ohio 2012).

Granted, static images can be an accepted form of production, as long as the production includes extracted text and the metadata needed for the production to be searchable. TIFF’s, by their very nature, are not searchable. PDF may or may not be, depending on whether it is a searchable PDF. As such, the danger of a “static image” production is it would be as searchable as a paper production, except there are no boxes of paper to keep in a repository.

Producing ESI as static images can also dramatically increase processing costs in converting searchable native files into non-searchable static images.

However, this case was not the “standard” discovery dispute of email from Outlook or Excel files, but online content. These types of cases battling over the production of online content will become the “new normal,” given the use of webmail, social media and the vast use of smartphones and tablets to create content with remote computing systems.

It is very understandable that attorneys may not know how to have this information captured after a decade of case law focused on native files, metadata or maintaining the parent-child relationship between email and attachments.

“Cloud discovery” calls for a collection expert knowledgeable in “cloud” collections, who can develop the most cost and time effective means to capture responsive discovery in a legally defensible manner. It is also entirely possible, depending on the case, that searchable PDF’s would be a reasonably useable form for a cloud discovery production.

There are many tools available to collect cloud discovery, from HTTrack to X1 Discovery to Nextpoint, depending on the nature of the online content. There are many other options as well, which would likely all be cheaper than motion practice over the form of production.