Scanning Paper Makes the Production ESI And Not a Document

Anderson Living Trust v. WPX Energy Prod., LLC, 2014 U.S. Dist. LEXIS 31025, 3-4 (D.N.M. Mar. 6, 2014), is a detailed review of production requirements under Federal Rule of Civil Procedure Rule 34(b)(2)(E). The crux of the case centered on whether scanning paper documents to PDF’s made the discovery “electronically stored information.” Moreover, if the paper discovery was now ESI under the Rules, did the producing party have to organize the production under the 34(b)(2)(E)(i)?

The Court found that the parties agreement to produce paper as PDF’s made the discovery ESI. As such, the organization requirement under 34(b)(2)(E)(i) did NOT apply to the former paper production. Rule 34(b)(2)(E)(ii) controlled instead, which requires ESI productions be in the form it is ordinarily maintained or in a reasonable useable form.

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This case highlights the train wreck that can happen from fighting over the form of production. Moreover, the fact the Court found the paper was transmuted to ESI by scanning might be technically correct, but is problematic. Moreover, the case even included a discussion of whether reviewing ESI in a review platform for privileged eliminated the ability to produce ESI as in “the usual course of business,” because it had been in a review platform.

Scanned paper does not OCR 100%. It runs the risk of not being fully searchable. This will depend on the age of the paper, quality of the text on the pages, and the effectiveness of the OCR technology. Luckily, much of the OCR technology today is very good with high accuracy rates. However, OCR in litigation does yet scan handwriting. As such, one would expect scans of non-text paper to require some form of production labeling.

It costs an eDiscovery service provider the same amount to scan a piece of paper for being a PDF or TIFF as it does for printing. However, the printing costs can add more to the total cost than simply OCR-ing a scanned file (I have seen as much as 10 cents a page cost increase).

If the requesting party wants to be difficult, they can request both paper be produced as paper to drive up the production cost for the producing party AND demand the production be organized under 34(b)(2)(E)(i). This would fly in the face of Federal Rule of Civil Procedure Rule 1 to conduct cases in a “just, speedy, and inexpensive determination” of every action when scanned paper can be produced as an image with searchable tect. Furthermore, the requesting party would now have boxes of paper to review, driving up their own billable hours.

Review technology allows anyone conducting document review to “tag” files for production that correspond to discovery requests. Unfortunately, many attorneys do not do this, either based on time constraints, the lack of interest in organizing a production for the opposing party, or they do not know how to.

Personally, I prefer conducting document review to organize what files are responsive to specific requests. Moreover, the time it takes to tag “produce” could be done just as easily as clicking “RFP1” or “RFP4” as tagging options. This makes it easier to perform quality assurance testing and the basic need to look up what files are being produced to a specific request.

 

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Nitty Gritty Discovery Requests

US Senior District Judge John Kane took on multiple discovery disputes against a Plaintiff in a wage an hour case. It is an amazing case study of what could be requested in a case.

Requesting Communications Off the Girlfriend’s Computer

The Defendants requested all ESI communications regarding the case, which included the Plaintiff’s girlfriend’s computer.

The Plaintiff objected to information from the Plaintiff’s girlfriend’s computer being searched because the information was irrelevant.

The girlfriend had assisted the Plaintiff in finding an attorney after he “…told her to look for a lawyer for me and she looked it up.” Lozoya v. All Phase Landscape Constr., Inc., 2014 U.S. Dist. LEXIS 7135, at *5. (D. Colo. Jan. 21, 2014).

The Court disagreed the information was irrelevant, stating:

Despite the seemingly narrow role Ms. Isla and her computer played in this matter, the Isla ESI is nonetheless relevant because the Isla ESI, at minimum, will allow Defendants to get a timeline of when Mr. Lozoya began searching for counsel. Further, the search terms Ms. Isla used may prove helpful. For example, evidence revealing that Ms. Isla hunted for counsel using the phrase “attorneys specializing in workers with no lunch breaks,” would boost the theory of Plaintiffs’ case, while evidence showing that Ms. Isla hunted for counsel using the phrase “reasons to sue employer” might be less probative. While the ultimate relevance of the Isla ESI remains to be seen, there is a logical chain of inferences to support my finding that the data sought appears reasonably calculated to lead to admissible evidence. Accordingly, Plaintiffs must produce the Isla ESI.

Lozoya, at *6.

It Ain’t Broke Until a Computer Forensics Expert Says So

The Plaintiffs argued two other computers subject to the discovery requests were broken. One computer had a shattered screen and the other incapable of holding a charge. Additionally, neither was backed-up when they failed. Id. 

The Court found that the information on the computers would not be found unavailable until a computer forensic expert examined the machines. As such, the Plaintiffs had to produce the ESI unless they could “cite to legal authority or point to factual support for their contention that it is impossible to extract data from the damaged computers.” Lozoya, at *7.

Phone ESI is More Than Call Records 

The Plaintiffs also challenged producing communications from cell phones on the grounds the Defendants had the communications between the parties.

Cell phone discovery is far more than the call records between the parties. There potentially are text messages, photos, voice memos and other information available on a cell phone.

The Court stated that the Defendants requested relevant communications with any person, not just the Plaintiff’s supervisors. The Court ordered the Plaintiffs did not have to produce phone ESI that was duplicative of ESI the Defendants already possessed, but “[f]or all other phone ESI in Plaintiffs’ possession relating to alleged wage and hour violations, however, Plaintiffs must pony up, excepting attorney/client privileged communications.” Lozoya, at *8.

Bow Tie Thoughts

It is not often a judge literally says, “pony up,” but it happened here.

Discovery is messy. I wager most cases are like this one, with parties fighting over single computers and phones. Requesting ESI from archiving systems and enterprise content management systems is the likely goal of service providers, but state court cases and single plaintiffs will see ESI from multiple sources that cause a computer forensic expert some frustration with potentially unusual situations.

It is noteworthy the ESI sought from the girlfriend were her “Google” searches for a lawyer. I have not seen that before in a case, even though I am sure this was not the first time it happened.

It should be noted that discovery requests for specific communications do not mean the requesting party gets full access to phones or other computers. The ESI must be relevant. As such, attorneys need to understand what tools can be used to acquire relevant data, which will require the help of a service provider in finding responsive discovery.

Finally, a lawyer cannot declare a computer is broken beyond repair. That very well may be the case, but a Court almost always requires at least an expert affidavit explaining why ESI is not reasonably accessible after examination by an eDiscovery expert.

Who Knew What When About the Form of Production

Magistrate Judge William Hussmann put a new spin on form of production analysis in Crissen v. Gupta: What form was discovery in and when was it in that form?

The Plaintiff brought a motion for the production of Word documents in native file format. The Producing Party had produced the files as non-searchable PDF’s. The Plaintiff argued the PDF’s lacked the metadata that showed who created the Word documents, revisions and when the files were printed. Crissen v. Gupta, 2013 U.S. Dist. LEXIS 159534, at *20 (S.D. Ind. Nov. 7, 2013).

The Producing Party countered that the Plaintiff did not state the form of production in their request and that they did not have to produce ESI in more than one form pursuant to Federal Rule of Civil Procedure 34(b)(2)(E)(iii).  Crissen at *20-21.

The Court explained the Producing Party was partially correct in their reading of Rule 34. However, the “full story” of Rule 34 states  that “[a] party must produce documents as they are kept in the usual course of business” and that, “[i]f a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Crissen at *21, citing Fed. R. Civ. P. 34(b)(2)(E)(i), (ii).

The Court further cited to the Advisory Committee notes, which states:

[T]he option to produce in a reasonably usable form does not mean that a responding party is 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 the requesting party to use the information efficiently in the litigation. If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.

Crissen at *21-22, citing Fed. R. Civ. P. 34, Advisory Comm. Notes (2006 Amends.).

Driving the point home, the Court explained that a requesting party’s obligation to specify a format for production is superseded by a responding party’s obligation to refrain from converting “any of its electronically stored information to a different format that would make it more difficult or burdensome for [the requesting party] to use.” Crissen at *22, referencing Craig & Landreth, Inc. v. Mazda Motor of America, Inc., 2009 U.S. Dist. LEXIS 66069, at *3 (S.D. Ind. July 27, 2009).

This is where things took an usual turn: The Court did not know from the record whether the Producing Party had the responsive discovery in native file format. Crissen at *23.

The Court explained that if the Producing Party had only PDFs before being served with the discovery request, they had met their production duties under Fed. R. Civ. P. 34(b)(2)(E)(iii). However, if the Producing Party had them in Word format prior to the discovery request, then the discovery had to be re-produced in native file format. Id. 

Bow Tie Thoughts

It is assumed a producing party has discovery in its native application. There can be exceptions to this assumption. For example, one party to a contract might only have the final version of the contract as a non-searchable PDF. Even then, the PDF’s would likely be an attachment to an email message.

It is highly unlikely a business is converting all business related ESI to PDFs and then destroying the native files as part of a data retention policy. It is conceptually possible, but extremely unlikely anyone would do business like that.

Control of Personal Email Accounts & Litigation Holds

Puerto Rico once again has issued a thought provoking eDiscovery opinion. It’s about time we hold a conference there.

The Court found the Plaintiff had offered sufficient evidence that the Defendant had a duty to preserve the personal email accounts of its former officers. The Court explained the email accounts were within the Defendant’s control because the officers had used the accounts for as along as seven years to manage the company. P.R. Tel. Co. v. San Juan Cable Llc, 2013 U.S. Dist. LEXIS 146081, at *4-5 (D.P.R. Oct. 7, 2013). Since the Defendant likely knew its managing officers were using personal email to conduct business, the duty to preserve included those accounts. Id. 

The Court did not grant the Plaintiff’s motion for adverse inference instructions, because there was no bad faith nor a showing of prejudice. P.R. Tel. Co., at *5.

The Defendant had issued a litigation hold within a month of the lawsuit.

Moreover, it appeared that only three email chains were “lost.” P.R. Tel. Co., at *6. 

While the Plaintiff could show three email chains were missing, it could not offer a clear theory on how it suffered any prejudice. P.R. Tel. Co., at *7.

Judge Bruce J. McGiverin ended the opinion with this legal foreshadowing:

Upon further discovery, more information regarding the extent of spoliation may come to light. Forensic analysis of these three former employees’ personal email accounts and computers may be appropriate to determine whether critical emails have been deleted. Nacco Materials Handling Grp., Inc. v. Lilly Co., 278 F.R.D. 395, 406 (W.D. Tenn. 2011) (“The only way to determine if relevant evidence currently exists or previously existed and was lost destroyed is to conduct a forensic examination to see if such evidence exists.”). At that time, plaintiff may renew its motion for sanctions if circumstances so warrant.

P.R. Tel. Co., at *7.

Bow Tie Thoughts

This case makes me think of one big issue: BYOD.

If an employer knowingly enables an employee to use a personal device for work, there is a duty to preserve what is relevant off of the device in a lawsuit. This could get ugly fast in litigation, as attorneys and experts debate doing targeted collections off of a personal device vs a mirror image.

If a company has Bring Your Own Device policies, they better have litigation plan that includes preserving any relevant information. It might be easier to simply have a work issued smartphone.

As to the personal email account issue, this would raise interesting collection issues. Email messages with eBay alerts, online dating or kid’s soccer games are highly unlikely to be relevant to a lawsuit. A data collection strategy could include targeting messages with work topics, specific individuals, date ranges and other narrowing methodologies. Early Case Assessment or data clustering technology would be very helpful in identifying relevant ESI.

You just need to compel the employee to turn over their passwords.

Mining for eDiscovery Sanctions

Some cases begin with such a “wow” introduction they have to be seen to be believed:

To put it lightly, there has been a severe shortcoming by Defendants in this action during the discovery process. Not only have Defendants’ resisted providing required information in initial disclosures and resisted previous discovery attempts by Plaintiff on an unfounded “we are not his employer” objection to discovery, but it has now come to light that Defendant did not even engage in a search for relevant electronically stored information (ESI) until April of this year—nearly ten months after this action was filed, and nearly two years after the EEOC investigation. And we are not talking about information that might have some tangential bearing on a lead to the discovery of admissible evidence, but emails that specifically discuss Plaintiff’s employment at the mine, his termination, and emails about Plaintiff which he has classified as “racist.” Surely these emails are relevant in an employment discrimination case alleging mistreatment based upon race, and should have been produced in response to Plaintiff’s first set of discovery requests propounded back in December of 2012. However, it is hard to produce something that Defendants have not even looked for. In fact, despite a litigation hold being placed on four email accounts—all human resource people at the mine or corporate office—in June 2011 when Plaintiff’s EEOC complaint was filed, counsel for Defendants did not request any ESI from Defendants’ IT department until April 2013. At or around that same time, Defendants placed holds on several other employees’ email accounts. Again, these were not people with some obtuse connection to the case, but included the people that actually fired Plaintiff, including the superintendent at the mine that signed the firing paper.

The logical question is: why was this not done? The only proffer by Defendants is that there was a minor miscommunication between counsel and a human resource (HR) manager, who they allege was responsible for collecting materials responsive to Plaintiff’s discovery requests. This miscommunication, as stated at the hearing on Plaintiff’s motion for sanctions, is that counsel did not specifically tell the HR manager to gather emails. Rather, counsel operated under the assumption that emails would be searched in his directive to find responsive materials. In addition to this failure to search for responsive ESI, Defendants operated a suspicious course while other discovery was playing out. For instance, during a May deposition of the aforementioned HR manager, counsel for Plaintiff asked whether there were any emails exchanged regarding Plaintiff. In response, the witness stated that there were emails but they were given to counsel. Counsel stood silent and the deposition continued. This establishes several things: first, Defendants knew there were relevant emails; second, Defendants had those emails in their possession; third, those emails were not given to Plaintiff, despite Defendants knowing they existed and having them in their possession; and finally, Defendants allowed the deposition to continue without Plaintiff having the benefit of the emails to question the witness about. This is just one instance of Defendants allowing a deposition to take place where there were, what the Court will classify as highly relevant documents, without giving those documents to Plaintiff to use at the deposition.

Clay v. Consol Pa. Coal Co., LLC, 2013 U.S. Dist. LEXIS 129809, 1-4 (N.D. W. Va. Aug. 13, 2013).

You are in trouble when the Judge makes any text bold in an opinion.

The Plaintiff brought a sanctions motion for the following:

(1) Default judgment on liability;

(2) All reasonable expenses associated with the prior depositions of six employees of Defendants;

(3) Permission to redepose these six employees at Defendants’ expense;

(4) Permission to depose seven additional employees;

(5) Exclusion of Plaintiff’s deposition at trial or in any motion;

(6) Denial of any effort to prolong this action;

(7) Precluding Defendants from conducting any further discovery; and

(8) Reasonable expenses associated with the instant motion.

Clay, at *7.

How to Go Mining for Sanctions 

The Federal Rules of Civil Procedure provide several options for sanctioning a party for discovery misconduct.

Pursuant to Federal Rule of Civil Procedure 37(c), a party can be sanctioned if they “fail to provide information or identify a witness as required by Rule 26(a) or (e) . . . the court, on motion and after giving an opportunity to be heard, can impose sanctions ranging from reasonable expenses, including attorney’s fees, to rendering default judgment.” Clay, at *8, citing Fed. R. Civ. P. 37(c)(1)(A)-(C).

A party must also supplement their Rule 26(a) initial disclosures or a response to a discovery request pursuant to Rule 26(e) “if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process.” Clay, at *8-9, Fed. R. Civ. P. 26(e)(1).

Demonstrating a Rule 26(g) violation is like striking gold. Or a pocket of methane if you are the producing party.

Rule 26(g) requires attorneys to make a reasonable inquiry before answering or objecting to discovery requests. Clay, at *9. If there has been an improper certification, the Court “must impose an appropriate sanction,” which “may include an order to pay the reasonable expenses, including attorney’s fees.” Clay, at *9, citing Fed. R. Civ. P. 26(g)(3).

Additionally, if a Court finds that a party “impedes, delays, or frustrates the fair examination” of a deponent during a deposition, the court “may impose an appropriate sanction,” including the reasonable expenses and attorney’s fees incurred. Clay, at *9, citing Fed. R. Civ. P. 30(d)(2).

Digging for Default 

Courts apply a four-part test to issue a default judgment:

 (1) whether the noncomplying party acted in bad faith;

(2) the amount of prejudice his noncompliance caused his adversary, which necessarily includes an inquiry into the materiality of the evidence he failed to produce;

(3) the need for deterrence of the particular sort of noncompliance; and

(4) the effectiveness of less drastic sanctions.

Clay, at *10-11, citing Mutual Fed. Sav. & Loan Ass’n v. Richards & Assocs., Inc., 872 F.2d 88, 92 (4th Cir. 1989).

The Court held this was not the “flagrant case where this harshest sanction should be imposed,” because the Court could not concluded that the Defendants acted in “bad faith and callous disregard for the authority of the district court and the Rules.”  Clay, at *11.

The issue with the Defendants was the fact they did not begin to search discovery until the Plaintiffs were about to file their second motion to compel. Clay, at *11-12. The motions to compel effectively compelled the party to comply with their discovery obligations. While this is not acceptable conduct, it is different than intentionally withholding unfavorable discovery or disobeying court orders. Clay, at *11.

 Striking Deposition Gold

The Court held that allowing the first six deponents to testify without providing discovery, when Defense counsel knew such discovery existed, impeded, delayed and frustrated the fair examination of the deponent. Sanctions were justified pursuant to Federal Rule of Civil Procedure 30(d)(2). Clay, at *15.

The Court ordered the re-examination of the first six deponents with all reasonable expenses to be paid by the Defendant, including five hours of attorney preparation time. Clay, at *15.

The Court also ordered the Defendants to pay all reasonable expenses from the prior depositions. Clay, at *15-16.

The Court also extended the deposition limit allowing another seven depositions, but did not allow costs, because the other deponents were either included in initial disclosures or the Plaintiff knew who were key players in the case. Id. 

The Mother load of Costs

The Court held the Plaintiff was entitled to reasonable expenses, including attorneys’ fees, for the sanctions motion. The Plaintiff had to submit an affidavit defining their costs for the Court. Clay, at *17-18.

Bow Tie Thoughts

Lawyers cannot ignore electronically stored information. I have met many attorneys who take a profoundly dangerous view that collecting ESI from their client is optional.

Here are hard truths about electronically stored information:

Your clients create ESI, whether it is a personal injury case, patent or a contract dispute;

ESI must be identified, preserved and searched to respond to discovery requests;

You cannot practice law by simply ignoring electronically stored information;

You cannot make ESI “go away” by yelling at it, intimidation or threat of Court order.

Electronically stored information will be present in virtually all civil litigation. You simply cannot get around it. Trying to ignore ethical and discovery obligations can end with anything from sanctions to violating your duty of competency to your client.

Attorneys must meet their legal obligations by understanding the interaction of the law to the technical solutions available to manage ESI. This requires learning how your client interacts with technology and the methodologies to capture relevant data for review and production.

What options are available to learn? My friend Michael Arkfeld has a solid online course and books that help. Craig Ball’s blog is an excellent resource. There are many other options. There are many industry conference as well. Regardless of what you choose, I encourage lawyers to be proactive. It is better to be in control of eDiscovery and not subject to sanctions motions that jeopardize your bar card.

Is Review Software Not Reasonably Accessible Because of Cost?

W Holding Co. v. Chartis Ins. Co., is a case involving competing proposed discovery protocols. The parties include the FDIC as the receiver of a bank and the former bank directors & officers in a $176 million suit with claims of negligence in making loans. W Holding Co. v. Chartis Ins. Co., 2013 U.S. Dist. LEXIS 52313, 4-9 (D.P.R. Apr. 3, 2013).

The universe of ESI began as approximately 6.8 terabytes of ESI and 921,000 paper documents. W Holding Co., at *6. $2.1 million was spent scanning paper into a searchable digital format. Id.

The FDIC planned to migrate data from one hosted review application to another to give access to party opponents of specific data. The projected cost for the hosting included:

Data migration of $450 per gigabyte

$0.185 per page for scanning paper documents and generating searchable text;

$0.025 per page for Bates and confidentiality stamping;

$325 per gigabyte for imaging native-format ESI into TIFF files; and

$35 to $300 per labor-hour for technicians, quality control, and management staff.

W Holding Co., at *6-7.

…and where there is lots of money being spent, there are disputes.

What is Not Reasonably Accessible?

The FDIC claimed the bank’s ESI in a review database was not reasonably accessible under Rule 26(b)(2)(B), thus requiring cost shifting. W Holding Co., at *13-14.

The party claiming ESI is not reasonably accessible must demonstrate the undue burden. The claim cannot simply be the ESI is expensive to produce because of volume, but that the cost must be “associated with some technological feature that inhibits accessibility.” W Holding Co., at *14, citing Chen-Oster v. Goldman, Sachs & Co., 285 F.R.D. 294, 301 (S.D.N.Y. 2012).

In the words of the Court, the FDIC had not “hinted” at any technical problem that hinder searching the ESI. Moreover, the ESI was already in a database for search. W Holding Co., at *14.

Even though the FDIC argued that high production costs could make ESI not reasonably access under FRCP 26(b)(2)(B), the Court made an important distinction between accessibility and proportionality. As the Court explained:

In short, I reject the contention that Rule 26(b)(2)(B)—and its shifting burden to justify production requests—kicks in any time that discovery implicates both (1) electronically stored information and (2) large volumes of data, even where the volume renders review costly.

Because FDIC -R has not shown that access to the Westernbank data is hindered by any unique technological hurdles, it has failed to trigger Rule 26(b)(2)(B). It is therefore not entitled to categorically label the DMS databases “not reasonably accessible.”

W Holding Co., at *16.

Proportionality

The Court attempted to analyze the proportionality factors under Federal Rule of Civil Procedure Rule 26(b)(2)(C). However, as the Court stated, “But frankly, the parties’ broad claims about their respective discovery proposals are too speculative to merit a ruling at this time.” W Holding Co., at *18.

The Court noted that the FDIC’s affidavits explained the “bulk costs” of the work, but did not “shed any light on the effort in this case” or provide what it would take to build responsive searches. W Holding Co., at *18-19. The Court stated:

In sum, this is less a situation where the scales are evenly balanced, and more one where the court has been given nothing to place on either side. Until the parties take affirmative steps to conduct discovery—perhaps after test runs, for instance—there is no ground for the court to dramatically alter the defaults under the Federal Rules of Civil Procedure.

W Holding Co., at *19-20.

After a lengthy opinion, the Court’s order can be summarized as follows:

FDIC will neither be categorically required to organize and label its productions, nor permitted to produce documents without adequate organization. 

No cost-shifting is justified at this time, though trial runs showing disproportionate costs, or abusive discovery tactics, could warrant reconsideration. 

The requesting party was to propose search terms first—however, since FDIC oversaw the loading of ESI into a database, it was expected to provide active assistance, and should anticipate consulting its technically-skilled staff or contractors as necessary.

Parties are to meet and confer over privilege issues, opposed to going to the Court initially.

W Holding Co., at *21-23.

Bow Tie Thoughts

Judges want to know the relevant details and reasons for any request for relief. Moreover, the Court is coming into the dispute cold. The Judge does not know the benefits of one review application over another, what is required to build search terms or likely the different search technologies that can be used.

There is a significant difference between accessibility under 26(b)(2)(B) vs proportionality under 26(b)(2)(C).  One way to look at the differences is accessibility is the cost of how you get the data; proportionality involves the benefit of the discovery vs cost. The commonality between the two is both require expert testimony to explain the technical issues to the Court, whether it is retrieving data from legacy systems or using a specific search software to review the data.

We are in a new world where attorneys must explain with expert affidavits why certain technology should be used, what costs are being incurred, why a search is (or is not) reasonable and the age old question of “why” a party is asking the Court for relief. A Judge does not want abstract hypotheticals on cost or searches; a Judge wants to know how the ESI in a lawsuit is being searched, what kind of data is being search and how the technology will make the searches more effective. This requires educating the Judge, which means detailed expert affidavits.

Drop-by-Drop Water Torture Productions

There are judges who have a way with words when they want to make a point. One example of such judicial prose was by Magistrate Judge Gregory G. Hollows in Botell v. United States:

At this juncture, the United States has purportedly been looking for documents for months, yet the undersigned, to the date of the hearing, does not have confidence that an organized, thorough search has been performed. Rather, defendant’s document production performance in these proceedings has been akin to a drop-by-drop water torture. At some point, plaintiff must be protected from the United States’ further belated production of pertinent documents. The court now enters a preclusion order prohibiting the United States from presenting evidence in its case that had been requested by plaintiffs in the Requests for Production, but which has not been produced by the date of compliance with this order.

Botell v. United States, 2012 U.S. Dist. LEXIS 134265, 15-16 (E.D. Cal. Sept. 18, 2012).

Botell v. United States is a wrongful death and personal injury case involving a minor injured and another killed at a National Park. The Government produced over 7,000 pages of documents, but there was a “a glaring lack of production of emails from defendant’s agents and employees.” Botell, at *11-13. Moreover, the total number of custodians produced by the Defendant totaled one.

The Plaintiffs argued five other relevant custodians’ emails needed to be produced, because the custodians were referenced in the already produced ESI. Botell, at *11.

The Defendants produced one declaration by the Chief Ranger at the park, which explained his efforts to find responsive email.

These efforts included “searching” the office and network drives, and the Ranger’s coordination with officials and IT personnel at another National Park to search another custodian’s computer. The declaration was silent on any search for emails by the other custodians. Botell, at *11-12.

Another declaration curtly explained the back-up policy for Lotus Notes emails as follows: “[B]ack-up emails are retained for 30 days only, unless they are subject to a litigation hold notice or pertain to the BP Gulf Oil spill.” Botell, at *12.

The Court ordered the Defendants to provide a declaration explaining the searches conducted to locate physical and electronic copies of responsive emails by the five custodians. The Court specifically required the following:

The declaration shall state the steps taken to locate these emails, whether any such emails exist, and if not, a definitive statement that they no longer exist. If further responsive documents are located, they shall be produced at the time declarations are filed.

Botell, at *12-13.

Bow Tie Thoughts

Nothing goes for the jugular like a preclusion order for failing to produce discovery. Botell is a powerful example of the dangers of what appeared to be “do it yourself” collection. While it was not outright stated the Defendant did not have an eDiscovery collection expert, it sure sounds that way from the context of the declarations.

One would hope when a large organization has a triggering event for a lawsuit, an effective litigation hold is enacted. Many of today’s records information management systems have the ability to electronically sequester a specific custodian’s email and ESI with a keystroke. Additionally, much of this technology has Early Case Assessment and data reduction features that can identify the relevant information for attorneys to review.

An organization should either have professionals trained in the search and preservation of ESI or retain outside professionals to competently preserve ESI. The steps taken to search and identify responsive ESI must be documented and should, at a minimum, explain the search methodology; technology used; data sources searched; search results; possible exclusions or exotic files; and anything else relevant to explain to a judge how ESI was searched.

A requesting party should not have to blink “torture” in Morse Code for a judge to stop a party neglecting their discovery obligations. An attorney’s duty of competency should compel their preservation obligations are met with those trained to effectively find and produce responsive discovery.

eDiscovery Review Strategies

Tips on reviewing electronic discovery, including issue tagging for causes of action or defenses and eDiscovery project management.

Forensically Examining A Lawyer’s Computer

In a dispute over a will and deed transfer, a New York State Court ordered the examination of a lawyer’s computer.

The idea of an attorney’s computer being searched by third parties should scare lawyers to death.

The attorney objected on the grounds the examination would violate the attorney-client privilege and work-product doctrine for all of the attorney’s other clients.

The Court was also concerned about privilege issues and ordered the following examination:

The computer forensic examiner was directed to review the computer only for documents that refer to Rose Tilimbo and it must not examine files which would not likely lead to the discovery of evidence related to Rose Tilimbo.

In the event the forensic examiner inadvertently examined any information that was not related to Rose it is directed to immediately cease the examination of that file.

In the event that forensic examiner located documents that refer directly to Rose Tilimbo or appear to be related to the purported will or the alleged deed transfer, those documents shall be mailed to the parties’ attorneys.

The attorneys would have 14 days from the receipt of documents to object to disclosure to the movants by notifying counsel for the movants that he is objecting and sending the documents to the court for an in camera inspection together with the reasons for the objection.

In the event that no objections are made to the production of the documents or the court rules that the documents are to be disclosed the computer forensic examiner may thereafter submit the documents to movants’ counsel.

Matter of Tilimbo v. Posimato, 2012 N.Y. Misc. LEXIS 4027, at *13-14 (N.Y. Sur. Ct. Aug. 22, 2012) (Emphases added).

Bow Tie Thoughts

It is very good to see a state court judge address the privilege issues of how to examine a lawyer’s computer.

If you ask three different computer forensic examiners how they would comply with the Court Order, you would probably have three different answers. The right approach will depend on how data is stored and multiple other factors best left to the experts.

One option is to make a “mirror image” of the computer and then search for responsive data. This is likely the least desirable for the attorney, because the entire contents of his computer have now been copied and are in the hands of a third-party. Short of a protective order and the computer experts acting as court-appointed neutral examiners who return or destroy the mirror image at the end of the examination, this is least desirable from an attorney’s perspective.

There is software available where the attorney could effectively self-collect his client files. While this might provide the most piece of mind to the attorney, it likely causes the most stress for the requesting party. It also raises issues of how searches were conducted and can easily cast doubt on the adequacy of the collection.

Another option is for a targeted collection of the attorney’s hard drive. This might take more time then doing a mirror image of the hard drive, but provides more piece of mind to the attorney. The collection is based on search terms devised by the computer forensic expert and attorneys to specifically identify the relevant information. This conceptually is a good middle ground approach to both preserve the parties’ interests and the confidentiality of the attorney’s clients.

Instead of the computer forensic examiner “mailing” documents to the attorneys, a hosted repository is an option the parties and court should consider. The producing party could first review the responsive information for any privileged ESI, creating all the necessary information for a privilege log right in the database. The requesting party could then perform its own review and note any challenges to any asserted privileges. The Court itself could then review the information “in camera” and rule on any privilege issues without protracted motion practice.

Too Many Cooks in eDiscovery

Also Posted on frank! The Nextpoint Blog

There are phrases a lawyer never wants to hear a judge say. One is your law firm “acted negligently in failing to comply with its discovery obligations.” Another is your client “acted willfully in failing to comply with its discovery obligations and assist its outside counsel to properly litigate this case in accordance with the Federal Rules of Civil Procedure and the Federal Rules of Evidence.”

Both phrases were stated in Coquina Invs. v. Rothstein. The facts have a Qualcomm-esq theme and highlight the need for project management like a fireball in the night. At a fundamental level, attorneys should not be afraid to ask their client questions about how they maintain their records. Moreover, trial counsel should never assume documents are only maintained as paper.

A lot of things went wrong in this case. The Court described that discovery was conducted in an “Inspector Clouseau-like fashion,” except there was nothing funny about it. Coquina Invs. v. Rothstein, 2012 U.S. Dist. LEXIS 108712, 4-5 (S.D. Fla. Aug. 3, 2012).

The Court stated the law firm (Law Firm 1) had over 200 attorneys working on the case, which included different attorneys handling the banking issues, document production, pretrial and trial practice. Id. 

The Court described the number of lawyers on the case as “too many cooks spoiling the broth.” Id.

The client also retained a second law firm (Law Firm 2). Law Firm 2 hired a consultant to perform work related to the case handled by Law Firm 1, which was not related to Law Firm 1. Id.

Not Now Cato!

The Plaintiff argued in their Fourth Motion for Sanctions that the Defendant altered a Due Diligence form to mislead the jury. Coquina Invs., at *5. While that is an excellent lineal attack, the facts were a lot more complicated.

A month after the Plaintiff’s filed their motion, the Defendant produce a document that the attorneys initially denied existed. Furthermore, Law Firm 1 filed a motion to withdraw certain statements and for the substitution of counsel (enter Law Firm 3). Coquina Invs., at *5.

Swine Form of Production

The major issues of the case focus on the form of production.

The Defendants produced ESI from a Lotus Notes database as a black and white static image. However, the native file had a red banner across the top of the file with the words “High Risk.” As a static image, “High Risk” appeared in black with a grey banner. Coquina Invs., at *12-13. At the evidentiary hearing, testing showed that printing the black and white TIFF’s made the header entirely black. Coquina Invs., at *14.  In short, a color TIFF was needed for the banner to remain visible.

The issue did not end with color TIFF’s. Even though the review database had the native files, one of the attorneys asked the client for a hard copy of the document at issue. The client directed her assistant to print the document and “identify any attachments in pen.” Coquina Invs., at *15.

The printed copies had several issues, such as “High Risk” being faint, but the formatting was altered so that the writing that ran horizontally across the top of the top of the document was compressed into a column running vertically down the page. Coquina Invs., at *15-16.

The “printed” file also lacked the embedded information that included the file’s archive and editing history. Coquina Invs., at *15-16. The Court described the difference between the printed file and the native file as “glaring.”  Coquina Invs. at *16.

The Court explained Law Firm 1 produced discovery directly to Plaintiff without the service provider’s assistance. Coquina Invs., at *17. With the document at issue, Law Firm 1 scanned the printed document and produced a PDF to the Plaintiff, instead of producing in native file format or as a color TIFF. Coquina Invs., at *18.

At a hearing opposing the Plaintiff’s motion to compel production of ESI as native files, in-house attorneys represented it was their practice to produce documents as they are kept in the normal course of business. Id. The in-house attorney assured the Magistrate Judge that a third-party vendor was conducting the production and that discovery would be produced as TIFF, searchable with 34 columns of metadata. Id.

Law Firm 1 thought the documents were maintained as hard copy documents in the ordinary course of business, thus why the firm produced the documents as PDF’s. Coquina Invs., at *18-19. One attorney testified that a senior associate confirmed to them that the documents were kept as hardcopies. Id.

As the court coldly stated: Obviously that information was incorrect. Coquina Invs.,  at *19.

Furthermore, the Court noted that Law Firm 1 did not have anyone contact their client on how the subject documents were ordinarily maintained (in Lotus Notes) or run any searches in their review software. Id.

The Curse of the Native Files

The Court held Law Firm 1 “acted negligently in failing to produce the CDD form in a manner that preserved the document’s qualities. It is clear that, to preserve all its original qualities, the CDD form should have been produced in native format or color tiff.”  Coquina Invs., at *19.

The Court’s stated the following on the production mistakes:

Evans testified that [Law Firm 1] produced this document in a separate pdf production without [Service Provider’s] involvement because she believed TD Bank kept the document in hardcopy in its ordinary course of business. This explanation is hard to believe. Upon review of the printout, [Law Firm 1] or in-house counsel should have immediately realized, at a minimum, that some information was lost due to the formatting errors, which are clearly visible on the face of the document. From looking at the formatting errors on the face of the document it is clear that it existed originally in some sort of electronic format. That should have prompted questions about how [Defendant] kept the documents. Further, it is reasonable to infer that at least one [Law Firm 1] attorney saw the original, html color document during discovery on the [Service Provider] document review platform. That placed the attorneys on notice that the document existed on Lotus Notes in native format and was originally in color. Finally, it is clear from a review of the initial printout—which contained a faint and barely legible banner—that further printing or copying of the document would result in degradation of the document’s clarity or quality.

Coquina Invs., at *40-41.

The Court stated the following on the Defendant:

[Defendant] acted willfully in failing to rectify [Law Firm’s] error or allowing it to endure. [Defendant] hides behind [Law Firm’s] mistakes and points to Pinkus’s deposition testimony to wash its hands clean of any involvement in this production of documents. [Defendant] would have this Court believe that, except for Pinkus, none of its approximately fifteen in-house lawyers or its representatives who sat through trial had any idea what the critical documents in this case were supposed to look like, and therefore cannot be held responsible for not noticing that the CDD form contained blacked out headers and lacked archive and editing information during pretrial or trial proceedings. That explanation defies credulity. Having reviewed the evidence and made the appropriate credibility determinations, I do not accept that this was the case.

Coquina Invs., at *41-42.

Revenge of the Native Files

The Court held Law Firm 1 and the Defendant were to pay the Plaintiff’s attorney’s fees and costs associated with bringing and litigating the various motions. Coquina Invs., at *49.

Son of Sanctions

The Court did not issue any sanctions against the individual attorneys, because there was no evidence any of them acted in bad faith or willfully. Coquina Invs., at *50-51.

However, the following statement by the Court is damning:

The individual [Law Firm 1] attorneys’ handling of this case left much to be desired. The document review and production appears to have been conducted in an almost ad hoc manner. The attorneys failed to adequately conduct document searches in response to Coquina’s counsel’s requests and this Court’s inquiries. The attorneys produced key documents on the eve of trial, and in the midst of trial, because of failures in their document search and production procedures. Although I recognize that the attorneys were dealing with a high volume of documents, the amount of production errors that occurred throughout these proceedings were simply incredible, especially coming from lawyers in a well regarded firm like [Law Firm 1], which in many ways earns its reputation from being able to litigate large, complex actions.

Coquina Invs., at *50.

Bow Tie Thoughts

Winston Churchill stated “Why, you may take the most gallant sailor, the most intrepid airman or the most audacious soldier, put them at a table together – what do you get? The sum of their fears.”

The same description applies to Coquina Invs. v. Rothstein. This case should terrify attorneys, eDiscovery service providers and corporate clients highlighting everything that can go wrong in the search and production of eDiscovery in a complex case.

There has been a fear since the first Qualcomm opinion of clients controlling what information trial counsel can review. This can negatively impact a lawyer’s ethical duty to be truthful to a Court if a client does not inform their attorneys about relevant information. Moreover, if there is information the client knows to be wrong, that needs to be communicated immediately to their attorneys.

eDiscovery requires project management in order for attorneys to completely practice law. Attorneys, their clients and any service providers must have clearly defined responsibilities, open communications, and a workflow that everyone involved follows consistently. Without effective project management, the risk of an eDiscovery Chernobyl grows exponentially.

The “form of production” still haunts many attorneys, with some outright expressing fear of producing ESI in native file format. While there are valid reasons to produce ESI as static images for redactions, I have been an advocate of native file productions for years.

Attorneys must understand the data they are reviewing, issues with production formats and know the risks associated with producing as static images. Many of the issues in this case could have been avoided with producing in native files or at least color static images. Moreover, it is highly unlikely a company would only maintain ESI as paper, given the cost of printing, storage or simply how people work in the 21^st Century. However, those are excellent questions to ask a client at the beginning of representation.