Name that Form of Production: Converting ESI to TIFF without Metadata is Not a Reasonably Useable Form

Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 U.S. Dist. LEXIS 21250 (M.D. Fla. Mar. 4, 2009) is a lengthy opinion covering Rule 34 requests, form of production issues concerning metadata, reasonably useable form of production, ethical responsibilities for candor to the Court and Opposing Parties and sanctions.  One could imagine the fact pattern on a Bar exam for issue spotting. 

The Procedural History Highlights

Defendant Lexington Ins. Company requested electronically stored information “in native form without deletion or alteration of metadata” from Plaintiff Bray & Gillespie. Bray & Gillespie, 13.  Bray & Gillespie (B&G) instead produced non-searchable TIFFs stripped of metadata.  Several attorneys from Reed Smith also withheld material information and made misrepresentations to the Court and Opposing Counsel as the motion to compel saga played out. 

Lexington Ins. Company sought sanctions against the Plaintiffs and to compel the production of ESI with metadata. 

Short Overview of ESI Collection

B&G had student interns download electronically stored information and scan paper documents.  This information was copied to a “Target Hard Drive” and given to the law firm Anderson, Kill & Olick, P.C.  Extractiva was then used to convert the ESI to static images (TIFFs) and extract metadata.  This ESI was then loaded onto an Introspect review database.  Bray & Gillespie, 7-8.

Reed Smith became the attorneys for B&G after one of the lawyers left Anderson, Kill & Olick, P.C. 

The Discovery Request & Production

After Lexington made discovery requests for electronically stored information, the Plaintiffs produced paper documents on disk and agreed to a “rolling production.”  Bray & Gillespie, 14-15.  The Defendants brought a motion to compel several months later when the Plaintiffs had not begun a “rolling production.”  Bray & Gillespie, 17.

Nearly four months after the rolling production agreement, the Plaintiff produced some ESI from the Introspect database on disk.  Bray & Gillespie, 18. 

The Defendants renewed a motion to compel shortly after the first ESI production.  Bray & Gillespie, 20.  A second production followed after a Court order.

As the Defendants began reviewing the ESI productions, they learned the ESI was in TIFF format, with no metadata or extracted text for author, data, or subject.  Bray & Gillespie, 22-23.

Producing ESI in a Reasonably Useable Form

The Court stated that producing the ESI in TIFF format without metadata eliminated the search capabilities compared to producing the ESI in native form.  As such, the ESI production was not in a reasonably useable form.  Bray & Gillespie, 23.

There were two options for making the production searchable: Option 1) OCR the TIFFs and then run ALCoder over the OCR to populate database fields for author, date, etc.  This would cause an additional cost to the Defendants, since the material was already searchable in native file form.  Option 2) Produce ESI in native form with extracted text, which makes use of the already searchable native files. 

 …and then Things Get Worse with Misrepresentation to Court on ESI Collection

You know someone is getting sanctioned when a Judge uses a lawyer’s name and the phrase “concocted a story” in an opinion. 

One of the Plaintiff lawyers represented to the Opposing Party and the Court that the Plaintiff printed all of the ESI and it was then scanned as TIFFs.  Bray & Gillespie, 25.

The Court summed up the “concocted story” as ignoring readily available or known facts pertaining to the collection and production of ESI.  Bray & Gillespie, 25-26. 

Enter the Sanctions Motion

The Defendants were not happy.  The Defendants claimed the Plaintiffs violated the Court order to produce ESI according to the form of production stated in the discovery requests.  The Defendants sought production of ESI according to the discovery requests, striking portions of the Plaintiffs’ claims and reasonable costs. Bray & Gillespie, 28.

The Court ordered B&G to produce to the Defendants the Plaintiffs’ Introspect database, minus any privileged ESI.  Bray & Gillespie, 66.  Additionally, B&G was ordered to pay all costs, including buying software or hiring someone to copy the litigation support database.  Bray & Gillespie, 67-68. 

The Plaintiffs were also required to allow a Defense computer expert direct access to the Plaintiffs’ Introspect database to confirm all non-privileged information had been produced.  Bray & Gillespie, 67-68. 

The lead attorney for the Plaintiffs was sanctioned and ordered to pay attorney’s fees and costs, which included the testifying expert and the Court reporter for transcribing the sanctions hearing. Bray & Gillespie, 71-72.   Others were sanctioned as well.

This is a very lengthy case that is fact intensive.  Every detail is not summarized in this blog.  The case is worth reviewing for the discussion on the reasonably useable form of production, discovery misconduct and the sanctions motion.

Status Messages and Client Confidences

Web 2.0 marketing is a highly effective way for lawyers to promote their services to prospective clients.  Web 2.0 marketing is leveraging collaborative programs hosted over the Internet, such as social networking sites or Wikis, to provide content highlighting an attorney’s services.  This form of marketing could also result in disaster if used incorrectly. 

Client Confidences: The Work Product Doctrine and the Attorney Client Privilege

The sailor in me remembers Hickman v Taylor 329 U.S. 495 (U.S. 1947) because it had a tug boat that sank.  The lawyer in me remembers it for the Work Product Doctrine.

 

For those not familiar with the Work Product Doctrine, the Doctrine protects documents prepared in anticipation of litigation from discovery, including mental impressions, conclusions, opinions, or a lawyer’s legal theories.  Chemtech Royalty Assocs., L.P. v. United States, 2009 U.S. Dist. LEXIS 27696 (M.D. La. Mar. 30, 2009).  The Work Product Doctrine is codified by Federal Rule of Civil Procedure 26(b)(3).  The Doctrine covers material prepared by a party and a party’s representative, which includes lawyers, consultants or agents.  In re CV Therapeutics, Inc. Sec. Litig., 2006 U.S. Dist. LEXIS 41568 (N.D. Cal. June 16, 2006), citing FRCP 26(b)(3). 

The Attorney Client Privilege is a different concept.  The Attorney Client Privilege protects “confidential disclosures made by a client to an attorney in order to obtain legal advice, as well as an attorney’s advice in response to such disclosures.”  In re CV Therapeutics, Inc. Sec. Litig., 2006 U.S. Dist. LEXIS 41568 (N.D. Cal. June 16, 2006), (citations omitted).  Additionally, the privilege applies “only [to] those disclosures — necessary to obtain informed legal advice — which might not have been made absent the privilege.” Id.

California law also requires a lawyer to, “…maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”  Cal Bus & Prof Code § 6068

Additionally, attorneys should realize they are responsible for their staff, consultants, non-lawyers, and others also using technology. ABA Model Rule of Professional Conduct, Rule 5.1, Rule 5.2 and Rule 5.3 outline these responsibilities.

Enter Web 2.0 Marketing

There is the potential for disclosure of information protected by both the Work Product Doctrine and the Attorney Client Privilege on social networking sites such as Twitter or Facebook.  These services are popular Web 2.0 sites where users can create public profiles, invite other users to follow their daily updates, micro-blogging and other information sharing.  It does not take much to imagine someone new to Web 2.0 marketing disclosing too much information to their “friends” or “followers.”

Here is how the risk of disclosure is possible: a Facebook user posts a status message they deem harmless, such as “I just landed ‘Company A’ as a client and have a bunch of back-up tapes to restore.”

Does this disclose any mental impressions or strategy about the case?  Probably not, but it is flirting with disclosure.  Moreover, Company A would probably not be thrilled with their lawyer announcing their actions in a lawsuit to 300 “friends.”

After reviewing data from imaged hard drives, the same individual posts the status message, “Wow, they really blew preserving their emails.” 

If the client is somehow identifiable, there is a problem, because a mental impression of the client’s ESI is being disclosed.  While the “friends” are probably in no way related to anyone in a lawsuit, disclosing a client confidence to one person is one too many. 

This Does Not Mean Don’t Market!

This is only a call to action for common sense.  Lawyers, consultants and their agents should exercise reasonable care in promoting their services.  A status message of “Working on a Summary Judgment Motion” or “Preparing for the CMC” or “I settled the case!” is not disclosing any legal theory or confidence.  Moreover, using Facebook with the JDSupa application to show published documents can be very effective marketing.  However, saying a client name, plus a specific argument or confidence in a status message, might put a tech savvy lawyer in hot water. 

Web 2.0 empowers lawyers to promote their services and demonstrate their knowledge in ways few people could imagine when Silicon Valley engineers were teenagers building computers in the 1970s.  Lawyers marketing their services on Facebook, Twitter and other social networking sites should exercise reasonable care to protect client confidences.  While this may seem like stating the obvious, the potential for someone saying too much in a status message is very real.

Spinning the Spoliation Record (OR, Download MP3 Sanctions)

I watched David Boies argue the original Napster case on CSPAN while taking Computer and Internet Law at McGeorge, University of the Pacific.  David Boies is more remembered for later representing Vice President Al Gore in the Bush v Gore legal saga.

Online music downloads have caused litigation with the click of the mouse since the days of Napster in the 1990s.  Arista Records LLC v. Usenet.com, Inc., 2009 U.S. Dist. LEXIS 5185 (S.D.N.Y. Jan. 26, 2009) continues the story of the music industry suing for copyright infringement. 

Arista Records LLC v. Usenet.com, Inc. is a tale of sanctions and music downloads. The Defendants operated Usenet.com, which is network message board that predates the Internet.  Arista Records, 4-5. The Defendants charged subscribers a monthly fee effectively for file sharing.  The Plaintiff music industry claimed the Defendants provided Usenet subscribers access to music piracy groups containing copyrighted digital music files. Arista Records, 7.  The discovery requests at issues included the Music Groups, Digital Music Files and promotion material on the Defendants’ website.

 The Plaintiffs claimed the Defendants deliberately destroyed evidence of the Music Groups, Digital Music Files and website information, thus claiming spoliation for the following:

 1) “Usage Data,” which Plaintiffs defined as “pre-existing records from Defendants’ computer servers reflecting actual requests by Defendants’ paid subscribers to download and upload digital music files using Defendants’ service;”

2) “Digital Music Files,” which Plaintiffs define as “the physical digital copies of the copyrighted sound recordings at issue in this case and related information hosted on computer servers operated by or on behalf of Defendants”; and

3) “Highly incriminating promotional materials previously available on the Usenet.com website.”  Arista Records, 8.

The chronologies of facts outlining Plaintiffs’ claims are technical and detailed.  The following outline is created from the Court’s opinion:

August 2007: Plaintiffs first sent a written notice of copyright infringement. 

The Defendants did not respond to the written notice.

October 12, 2007: Plaintiff sues Defendants.

January 2008: Plaintiff Rule 34 requests specifically for the Usage Data.

February to March 2008: Plaintiff attempted to acquire data through correspondence with Defendant

March 8, 2008: Defendants agreed data was relevant and to produce “snapshots.”  Arista Records, 9-10.

During a period of only days in March 2008, the Defendants disabled the music groups subject to the discovery requests.  The Plaintiffs challenged this action and demanded the Digital Music Files be preserved.  The Defendants represented the music files had been preserved.  Arista Records, 12-13.

The Plaintiffs claimed the Defendants reconfigured their system in order to write-over the Digital Music Files.  Additionally, the Plaintiffs represented to the Court that only 78 of the 900 Music Groups had been reactivated.  Arista Records, 13.

 The Defendants went to the extreme of removing all references to “Music” and “mp3s” from a promotional webpage. The Court noted the “Defendants destroyed all copies of this webpage, and only produced the sanitized version of it to Plaintiffs during discovery.” Arista Records, 79-80.

The Court found the Defendants’ production was in bad faith and sanctioned the Defendants with an adverse inference instruction for their discovery violations.  Arista Records, 78-80.  The Court based the sanction order on the fact the Defendants had an obligation to preserve and produce the following ESI:

Useage Data and Digital Music Files.   Arista Records, 61-62.

Images from the website.  Arista Records, 64.

Promotional materials from the website.  Arista Records, 79-80.

The Defendants argued that they could not preserve data on their serves because it was transitory in nature without any sort of back-up.  Arista Records, 68.  This argument was flatly rejected, because the Defendants had produced some of the “transitory” Usage Data and Digital Music Files to Plaintiffs.  Id.

What are the lessons learned from this case?  First, don’t go around destroying ESI that is relevant to a lawsuit or subject to a discovery request.  Arista Records has many examples of bad faith behavior with willful acts to remove user group information, digital music files and website information.  Additionally, a party’s duty to preserve and produce electronically stored information does not allow for unethical gamesmanship. 

The other big lesson: Music downloads and piracy has been the subject of litigation for over a decade and will not likely cease anytime soon.

Ethics of e-Discovery (or, Teaching Lawyers Ballet)

“Watching an incompetent lawyer is like watching a clumsy ballerina.” 

Magistrate Judge John M. Facciola, February 4, 2009

 Magistrate Judge John M. Facciola’s keynote at Legal Tech 2009 had a call to action for lawyers to have certifications and standards of competence regarding technology. 

In light of how everyday life has changed from iPhones to DVRs to Facebook, it is no surprise you can see why Judge Facciola took this position. 

Cases such as Mancia v. Mayflower Textile Servs. Co., 2008 WL 4595175 (D. Md. Oct. 15, 2008 ), Covad Communications Company v. Revonet, Inc. 2008 U.S.Dist. LEXIS 104204 ( Dec. 24, 2008  ), Victor Stanley, Inc. v Creative Pipe, 2008 U.S. Dist. LEXIS (May 29, 2008 ) further highlight the need to understand not just the technology the clients are using, but the litigation support products the firm is deploying. 

The questions remains, how would certificates or competency standards be measured?  Who would manage such a system? 

History is helpful in coming up with a plan.

 In 1975, California was the first state to introduce the Professional Responsibility Examination, testing candidates on legal ethics and rules of professional conduct.  California enacted the “Ethics Exam” in response to many of the major players in Watergate being California attorneys.  Today, California’s continuing legal education requirements includes Legal Ethics, Detection/Prevention of Substance Abuse and Elimination of Bias in the Legal Profession.  These ethical requirements are managed under the existing CLE structure for California attorneys. 

 Just as the Bar reacted to the Watergate attorneys, State Bar Associations may have to take action against “technical incompetence.” 

 State Bar Associations across the country should consider requiring CLE course material specifically on the ethical duty of competency, specifically regarding technology.  Moreover, the legal justification for “technically competency” is arguably already an ethical requirement.  California Rules of Professional Conduct 3-110(B)(2) defines competence in any legal service as including “learning and skill.”  Additionally, subsection (C)(2) states:

If a member does not have sufficient learning and skill when the legal service is undertaken, the member may nonetheless perform such services competently by…2) by acquiring sufficient learning and skill before performance is required. CA Rules of Professional Conduct 3-110(C)

 The need to understand electronically stored information and technology was brought to life while talking with a lawyer a few months ago.  The lawyer said their client was a heavily regulated industry.  I would be shocked if this client did not use any software to track materials and for legal compliance.  The lawyer asked, “What if I decide e-Discovery is not important because I have paper invoices and logbooks?”

 The lawyer was blunt in saying he did not want to “deal” with e-Discovery. This lawyer was willing to dismiss all electronically stored information without consulting the client on what ESI existed, email archiving polices, whether they enacted a litigation hold, or doing any collection or review.

My first reaction for anyone thinking that is a good plan, please review Qualcomm Inc. v. Broadcom Corp., 2008 U.S. Dist. LEXIS 911 (S.D. Cal. Jan. 7, 2008).  Qualcomm stated, in relevant part:

“[An] Attorneys’ ethical obligations do not permit them to participate in an inadequate document search and then provide misleading and incomplete information to their opponents and false arguments to the court.”  Qualcomm Inc. v. Broadcom Corp., 2008 U.S. Dist. LEXIS 911 (S.D. Cal. Jan. 7, 2008).

One could argue a lawyer has made an “inadequate document search” if they do not have any discussions with their client on electronically stored information, enact a litigation hold, perform collection of ESI, or any review of e-Discovery.  Furthermore, by the virtue of their search being inadequate, the lawyer’s arguments to the court would at a minimum be false, if not outright misleading. 

I believe State Bar Associations are the ones in the best position to require e-Discovery continuing legal education courses.   Creating new agencies or oversight organizations might tax already tight state budgets.  While teaching lawyers not to be clumsy ballerinas will not be easy, adding 2 or 3 hours of e-Discovery courses on collection, technology or review probably will be the easiest song for lawyers to learn how to dance to.