Proportionality and Labeling ESI Productions

The new Amendments to the Federal Rules of Civil Procedure are bringing new voices to discuss eDiscovery. Magistrate Judge Nina Y. Wang issued a thoughtful opinion of the new Rules in Kissing Camels Surgery Ctr., LLC v. Centura Health Corp. (D.Colo. Jan. 22, 2016, Civil Action No. 12-cv-03012-WJM-NYW) 2016 U.S. Dist. LEXIS 7668.

Here is the short version of the dispute in a complex case: The Plaintiff brought a motion to strike the Defendants’ requests for production that were duplicative. The Plaintiff had already produced a terabyte of ESI and were not in the mood for the Defendants’ position that the Plaintiff identify what ESI they had already produced that was responsive to the Defendants’ requests. Kissing Camels, at *3-4, 7-9.

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Judge Wang very effectively summarized the world of civil litigation by invoking Chief Justice John Roberts’ Year End Report on the Federal Judiciary, which stated the 2015 FRCP Amendments were intended to:

(1) Encourage greater cooperation among counsel;

(2) Focus discovery—the process of obtaining information within the control of the opposing party—on what is truly necessary to resolve the case;

(3) Engage judges in early and active case management; and

(4) Address serious new problems associated with vast amounts of electronically stored information. 

Kissing Camels, at *5.

Judge Wang also made it a point to highlight the Chief Justice’s note that Rule 1 gives both lawyers and the Court an affirmative duty to work together to resolve disputes efficiently. Id.

The Court further outlined the proportionality principles of Rule 26(b)(1), which require Courts to “consider the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Kissing Camels, at *5-6.

The Court noted that many of the Defendants’ discovery requests were improper omnibus requests where no effort was made to tailor the discovery request to the issues in the case. Kissing Camels, at *7-8. The Plaintiff rightly objected to these requests, but made only improper boilerplate objections. Kissing Camels, at *8. The new Rule 34(b)(2)(B)-(C) requires parties to object with “specificity” and “an objection must state whether any responsive materials are being withheld on the basis of the objection.” Id. The Court described the Plaintiffs’ objection as follows:

As far as this court can tell, Plaintiffs fail to provide any specificity to their objections, including their objection that they have already produced responsive documents. Rather, it appears that Plaintiffs’ response simply points generally to the production of 1 terabyte of information—conservatively, millions of pages—without providing any type of guidance to Defendants as to where in the production such responsive documents are to be found.

Kissing Camels, at *8-9.

Judge Wang took a deep dive into the issue of whether Rule 34(b)(2)(E)(i) and (ii) both apply to electronically stored information. As many recall, subsection (i) requires a party to produce documents in the ordinary course of business or label a production. Kissing Camels, at *9. Many courts have treated (E)(i) and (E)(ii) as “supplementary rather than alternative.” Kissing Camels, at *12.

The ESI had been produced in a searchable format, so normally there would be no further analysis or production requirements. However, the Court noted the case was not ordinary. Judge Wang explained:

Based on the specific facts before me, including the volume of the document production to date, the asymmetry of information regarding the production between Plaintiffs (who are trial ready with respect to co-Defendant Centura Health Corporation and in a separate case with similar allegations against Cigna), the duration of time during which this case has been pending, and the fact that the Parties suggest that additional discovery must be conducted as to both the claims of the Second Amended Complaint and the counterclaims asserted by Defendants, this court concludes that Plaintiffs must provide additional information about where in the production Defendants may find certain information. This court will not, however, compel Plaintiffs to provide bates range numbers for responsive documents for every Request for Production; given the breadth of the discovery requests, such an Order would simply foment additional disputes. Rather, this court will permit Defendants to identify ten limited categories of documents already requested through the existing Requests for Production to which Plaintiffs objected based on being duplicative (e.g., documents that reflect Plaintiffs’ internal communications regarding network contracts with United, Anthem, Aetna) no later than February 4, 2016. Once identified, Plaintiffs must identify bates ranges of responsive documents to those ten categories, in writing, no later than February 16, 2016. This will ensure that Defendants prioritize their requests regarding location of responsive documents within the 1 terabyte of data, and will limit Plaintiffs’ obligation to sort through the production on Defendants’ behalf and correlate every Request for Production to specific bates ranges. 

Kissing Camels, at *14-15.

Bow Tie Thoughts

Electronically stored information is generally produced as it is ordinarily maintained or in a reasonably useable form under Rule 34(b)(2)(E)(ii). However, I still like to do my issue coding for responses that could comply with Rule 34(b)(2)(E)(i) for organization.

Binders in Everlaw grouping discovery responses.

I like setting up issue coding to correspond to each request for production. As searches are conducted for each response, ESI that is responsive to that request is tagged for that response. As is often the case, an email or Excel file can be responsive to more than one request, but that does not mean the data is produced more than once. After review for responsive discovery is completed, a report can be exported out to Excel if the requesting party has sought the production to comply with Rule 34(b)(2)(E)(i).

Tagging_Production

I know many attorneys who think is a waste of time. Others take a hard line to make the other side’s life as difficult as possible. I think it is vital for internal monitoring of knowing which ESI is responsive to what request. Moreover, if there is a reason to object to a specific request, knowing what ESI might be responsive makes objecting to that request with specificity a far easier task.

CSV Export from Everlaw with fields and objection.

CSV Export from Everlaw with fields and objection.

 

Form of Production Battles: TIFF vs MSG

Pick your battles is a truism in form of production disputes.

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In Feist v. Paxfire, Inc., the Plaintiff alleged the Defendant made multiple discovery abuses, from producing email in .msg format and not as TIFF, to making an “intentionally burdensome production.” Feist v. Paxfire, Inc., 2015 U.S. Dist. LEXIS 145024 (S.D.N.Y. Oct. 26, 2015). These arguments failed.

The Plaintiffs requested ESI to be produced as TIFFs and argued that the Defendant did not properly object to the form of production. Feist, at *2. The Court held that the Plaintiff’s argument was meritless, because 1) there were email communicates between counsel regarding the form of production for email in .pst format; 2) the Court downplayed the difference between .pst and .msg format; and 3) that “msg format contains more metadata than TIFF format.” Feist, at *4. The Court further stated that there was “no evidence” that the .msg form imposed “considerable costs” for the Plaintiffs. Id.

It is worth noting that TIFFs are static images that contain no metadata at all. Any metadata would need to be produced in a load file. While it is wise to always review in a review application, I personally would prefer reviewing native files in a near-native view in a hosted application.

The dispute further included the Defendant’s 2012 production being shared to the Plaintiff in a Dropbox folder. An attorney for the Plaintiff deleted some of the information on Dropbox, resulting in the Defendants re-producing the deleted ESI with a supplemental production. Feist, at *5.

The Court held the Plaintiff responsible for the production of any duplicative ESI, citing an email from Plaintiff’s counsel stating, “that Plaintiff’s counsel was attempting to restore files unsuccessfully, and that she understood ‘you are sending us a hard drive with the materials, so we don’t need to worry about drop box [sic]…’” Feist, at *5-6.

Judge Ronald Ellis ended the opinion with these final words to the litigants: On balance, both Parties have caused unnecessary delay in discovery and have exhibited a lack of communication regarding document production. Feist, at *6.

Bow Tie Thoughts

Attorneys often get lost in the “fog of war” in eDiscovery disputes. There are times when bringing a motion to compel is the absolute right answer; there are times when it is the absolute wrong course of action.

Is it really worth fighting over producing ESI with redactions as TIFFS instead of PDFs? Most review applications give options for either format. If the requesting party wants one over the other, the fight is just not cost effective.

History has many examples of miscommunications resulting in disaster. Lawyers who want to fight on every issue run the risk of ignoring what the opposing party is saying, creating a situation that can end in expensive motion practice. In the end, this results with money and time being lost with nothing gained.

Be Specific If You Are Going to Attack the Form of Production

Oh, Rule 34. You are the code section that keeps giving.

Under Federal Rule of Civil Procedure Rule 34(b)(2)(E)(i), a party “must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.”

A Plaintiff brought a motion to compel the opposing party to organize and label their production to correspond to the categories in the Plaintiff’s Requests for Production. Things did not go well for the Plaintiff’s motion. Hall v. Habul, 2015 U.S. Dist. LEXIS 87545, *15-16 (M.D. La. July 6, 2015).

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The Defendant’s production was Bates labeled, but the Plaintiff still took the position that the production did not comply with Rule 34(b)(2)(E)(i). Id. Unfortunately for the Plaintiff, there was no further explanation as to why the production did not comply with the Rules. The Court did not know if the production was of electronically stored information, scanned paper documents, or a blended production. Id. Moreover, the Plaintiff did not explain why they did not believe the production was in the usual course of business, which is one of the production options under Rule 34(b)(2)(E)(i). Hall, at *16. As such, the Court could not determine if Rule 34(b)(2)(E)(i) was violated. Hall, at *15.

The only assertion the Court had to work with was the Defense attorney stating the “documents” were produced in the usual course of business. Hall, at *16. There was nothing in the record to refute this statement, thus the Court concluded the Defendant complied with Rule 34(b)(2)(E)(i). Id.

Bow Tie Thoughts

If you are going to challenge a production, be sure to specifically state what is wrong with the production. This could be the request for production called for native file format and static PDF’s were produced instead. There are many ways a production could not comply with the Rules.

I know many attorneys who produce ESI in the “usual course of business,” thus do not believe in labeling their productions. I know a few who revel in this strategy, wanting to let the other side figure out what records correspond to each discovery request. These attorneys often view the opposing party as a zombie hoard to be destroyed without mercy.

Being a good anal-retentive Virgo, I have a different view of document review. I believe in setting up issue coding to correspond to the Requests for Production. If you really want to get organize, have the RFP’s correspond to your Causes of Action or Defense, so you know exactly what supports your arguments and responds to the opposing party. This is excellent for being able to quickly retrieve records for review in preparing discovery responses or motion practice.

Most review applications allow coding fields to be exported out as an Excel file or CSV. A producing party can comply with Rule 34(b)(2)(E)(i) by exporting fields in order of discovery requests for issue tagging (such as an RFP00001), followed by the Document Identifier, such as Bates, Docid, or Production Number, and relevant metadata, perhaps even the system file pathway to show how the origin of the record.

Parties are within their rights to simply produce discovery as it is maintained in the ordinary course of business. I prefer having them labeled, but that is both my preference and one option to specify under the Rules.

 

Straightening Out the Form of Production

Magistrate Judge Stanley Boone had to straighten out a form of production dispute in a consumer protection case over curling irons. As the parties in this case learned, sometimes the form of production needs a detangler.

iStock_CurlingHairThe Plaintiffs requested ESI to be produced in native file format or TIFF with associated metadata. The Defendant produced ESI as PDFs. Wilson v. Conair Corp., 2015 U.S. Dist. LEXIS 57654, 4-5 (E.D. Cal. Apr. 30, 2015).

Judge Boone began his analysis with a summary of the form of production rules under Rule 34:

(E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:

(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;

(ii) If 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; and

(iii) A party need not produce the same electronically stored information in more than one form.

Wilson, at *6-7.

The Plaintiff’s request for ESI to be produced in native format was very standard. However, the data requested was produced from a proprietary third-party “STARS” database. Wilson, at *8. The Plaintiffs would not be able to access or review this data as it is ordinarily maintained because of its proprietary nature.

The Defendants produced the proprietary ESI as PDFs. The Plaintiff challenged this static image form of production in favor of TIFFs with metadata. Wilson, at *9. However, the Defendants were willing to produce future ESI as TIFFs. Id.

Excel files were also produced as PDF’s in order to redact information. Id. The Plaintiffs sought the Excel files to be produced in native file format. Id.

The Plaintiffs argued in favor of a TIFF production over PDF because the “format is more efficient, cost effective, and better suited for use inside a database application and it will require additional work to get the data produced in PDF format into a usable state.” Wilson, at *9-10.

The Plaintiffs further demanded the ESI from the STARS database be produced in Excel format. The Defendants ultimately agreed to this production format, but did not explain how the issue of redaction would be addressed in the opinion. Wilson, at *10.

The Court stated, the “Rules do not require a party to produce ESI in the form most helpful to the opposing party.” Wilson, at *10, citing U.S. ex rel. Carter v. Bridgepoint Educ., Inc.,     F.R.D.    , 2015 U.S. Dist. LEXIS 26424, 2015 WL 818032, at *15 (S.D. Cal. Feb. 20, 2015). As such, the Court ultimately held that 1) the STARS data could not be produced in its native format; 2) the Defendant would produced additional discovery in TIFF format; and 3) the Defendant would produce associated metadata for its prior production if it had not already done so. Wilson, at *11.

Bow Tie Thoughts

As any good hair stylist can tell you, a good product can help detangle knotted up hair. The same can be said for virtually any of the review applications on the market today. Most pride themselves on being able to review native file format, near-native, and static images such as TIFF and PDF.

I think it is odd to have a fight over which static image to produce. Both TIFF and PDF work well in today’s modern review applications. This was not always the case, as PDFs can be both a native file and static image in older review applications. It has been awhile since I have seen this be an issue in document review. That being said, if a requesting party asks for a specific static image format, I recommend honoring the request.

There are horror stories where producing parties have produced batches of native files as massive PDF’s that are several hundred, or thousand, of pages. In those situations, the requesting party has a very strong argument that the production was not in a reasonably useable form.

What Did We Learn About eDiscovery in 2014?

As 2014 draws to a close, it is time to reflect on the cases from this year in eDiscovery. One of the biggest trends I took away from caselaw in 2014, is that more Judges have a greater understanding of eDiscovery, resulting in practical opinions.

Here are the practice areas I found to be the most interesting in 2014, which can be heard in full on my 2014 eDiscovery Year in Review on iTunes or Buzzsprout (Presented by Paragon):

Application of Proportionality Analysis

Judges Questioning Why The Court Was Asked Permission to Use Predictive Coding

We still have Form of Production issues eight years after the 2006 eDiscovery Amendments to the Federal Rules of Civil Procedure

The Importance of Documenting Services for Taxation of Costs

What will 2015 hold for us in the world of electronic discovery? I think we will see proportionality analysis focus on the value of the information sought in relation to the case and not solely just the cost of the discovery. Parties will have to explain how the information is useful, such as how it relates to a claim, opposed to merely saying, “It is expensive.” This will require counsel to focus on the merits of the case and how the requested discovery will help advance the litigation.

I personally hope litigants stop asking Judges for permission to use predictive coding. No one asks, “Can I de-dup the data? Is it ok to use clustering? May I please use conceptual search in addition to keywords?”

The issue with all productions is whether or not the production is adequate. In my view, parties going to war over predictive coding as a means to review electronically stored information is asking the Court to issue an advisory opinion. The time to fight is when the there actually is a dispute because a production is lacking, instead of engaging in arguments of how much a human being can read in an hour compared to a computer algorism.

To learn more on the issues from the past year, please check out my 2014 eDiscovery Year in Review audio podcast on iTunes or Buzzsprout.

I want to thank Paragon for sponsoring the 2014 eDiscovery Year in Review. Please check out their website and recent blog post on the Convergence of eDiscovery and Information Security to learn more about their services.

Why Deviate from Native Files in a Case Management Order?

ConjectureThere are Case Management Orders that show parties spent a lot of time considering eDiscovery issues. There are the ones that show a lack of thought. There are ones that are mixed.

This one shows a lot of forethought, but I am puzzled by the form of production.

Technology Assisted Review is Good for You and Me

There is nothing magical about using Technology Assisted Review. There is also no rule requiring specific technology to find responsive electronically stored information. The issue is always one of whether a production was adequate.

The Case Management Order in Green v. Am. Modern Home Ins. Co., states the following on Technology Assisted Review:

  1. Technology Assisted Review in Lieu of Search Terms. In lieu of identifying responsive ESI using the search terms and custodians/electronic systems as described in Sections II.C & II.D above, a party may use a technology assisted review platform to identify potentially relevant documents and ESI.

Green v. Am. Modern Home Ins. Co., 2014 U.S. Dist. LEXIS 165956, 4 (W.D. Ark. Nov. 24, 2014).

I would argue such a decree in a Case Management Order is unnecessary under the Federal Rules of Civil Procedure and case law, but such a specific order should preemptively end any question on whether predictive coding, data analytics, “find similar,” conceptual search, and any other available search technology can used in the case.

The Form of Production

I am not a fan of converting native files to TIFFS and conversion to OCR, absent the need to redact confidential or privileged information. That is exactly what this order proscribed, minus spreadsheets:

  1. Format. All ESI, other than databases or spreadsheets, shall be produced in a single- or multi-page 300 dpi TIFF image with a Concordance DAT file with standard delimiters and OPT file for image loading. The documents shall also be processed through Optical Character Recognition (OCR) Software with OCR text files provided along with the production. Extracted Text shall be provided for all documents unless it cannot be obtained. To the extent a document is redacted, OCR text files for such document shall not contain text for the redacted portions of the document. Each TIFF image will be assigned a Bates number that: (1) is unique across the entire document production; (2) maintains a constant length across the entire production padded to the same number of characters; (3) contains no special characters or embedded spaces; and (4) is sequential within a given document. If a Bates number or set of Bates numbers is skipped in a production, the Producing Party will so note in a cover letter or production log accompanying the production. Each TIFF image file shall be named with the Bates Number corresponding to the number assigned to the document page contained in that image. In the event a party determines that it is unableto produce in the format specified in this section without incurring unreasonable expense, the parties shall meet and confer to agree upon an alternative format for production.
  1. Metadata. To the extent that any of the following metadata fields associated with all applicable documents are available, the Producing Party will produce those metadata fields to the Requesting Party: file name, file size, author, application date created, file system date created, application date last modified, file system date last modified, date last saved, original file path, subject line, date sent, time sent, sender/author, recipient(s), copyee(s), and blind copyee(s). For emails with attachments, the Producing Party will indicate when a parent-child relationship between the message and the attachment exists. A Producing Party shall also produce a load file with each production with the following fields: Starting Bates; Ending Bates; Begin Attach; End Attach; and Source (custodian/location from which document was collected). If any metadata described in this section does not exist, is not reasonably accessible, is not reasonably available, or would be unduly burdensome to collect or provide, nothingin this ESI Order shall require any party to extract, capture, collect or produce such metadata.

Green, 4-7.

The order does included extracted text, but why go to the trouble of requiring production as TIFFs in the first place? The statement about OCR could be misconstrued to requiring OCRing the TIFFs when any searchable information is already available on the form of extracted text, thus OCRing is both redundant and adds cost. The only reason to OCR a TIFF is because it needs to be redacted, because producing extracted text would inadvertently produce the redacted content.

Most review applications today do a great job of ingesting native files and allowing users to review in near-native. If the native file needs to be accessed, most applications allow for reviewing the native within the review application or a copy downloaded for review in the native application.

Requiring conversion to static images is not the default of Federal Rule of Civil Procedure Rule 34. I do not recommend requiring conversion to TIFF for production, unless there is a substantial amount of redactions that must take place.

There are many types of metadata, from embedded, to substantive, to system. The above order reflects metadata as it was objective coding, seeking specific information. While all useful information, I would encourage parties to think in more terms of types of metadata, in addition to how the information should appear in a review application.

Spreadsheets in Native File Format

The order stated the following on spreadsheets:

  1. Spreadsheets. Absent special circumstances, Excel files, .csv files and other similar spreadsheet files will be produced in native format (“Native Files”). Native Files will be provided in a self-identified “Natives” directory. Each Native File will be produced with 6a corresponding single-page TIFF placeholderimage, which will contain language indicating that the document is being produced as a Native File. Native Files will be named with the beginning Bates number that is assigned to that specific record in the production. A “NativeLink” entry for each spreadsheet will be included in the .DAT load file indicating the relative file path to each native file on the Production Media. Native Files will be produced with extracted text and applicable metadata fields if possible and consistent with Section III.A.2 above. For documents that contain redacted text, the parties may either apply the redactions directly on the native file itself or produce TIFF image files with burned-in redactions in lieu of a Native File and TIFF placeholder image. Each Producing Party will make reasonable efforts to ensure that Native Files, prior to conversion to TIFF, reveal hidden data from redacted Native Files that are produced as TIFF image files and will be formatted so as to be readable. (For example, column widths should be formatted so that numbers do not appear as “#########”.) Under these circumstances, all single-page TIFF images shall include row and column headings.

Green, at *8-9.

I am glad the default for spreadsheets did not deviate from the Rule 34. I am curious if any of my case manager friends would agree with the order requiring TIFF placeholders and renaming the native files.

The past year has seen parties become more detailed in their case management orders regarding electronically stored information. This is a good thing. However, I strongly encourage parties to not deviate from the Federal Rules of Civil Procedure without reason, leverage the search abilities of their review applications, and make sure the case management order helps the case comply with Federal Rule of Civil Procedure Rule 1.

Rule 34: As Basic As You Get

Magistrate Judge Paul Grewal is one of the new heroes of eDiscovery jurisprudence. In Venture Corp. Ltd. v. Barrett, the good Judge opened with the following on Rule 34:

Most lawyers (and hopefully judges) would be forgiven if they could not recite on demand some of the more obscure of the Federal Rules of Civil Procedure. Rule 80 (Stenographic Transcript as Evidence) and Rule 64 (Seizing a Person or Property) come to mind. But Rule 34 (Producing Documents, Electronically Stored Information, and Tangible Things) is about as basic to any civil case as it gets. And yet, over and over again, the undersigned is confronted with misapprehension of its standards and elements by even experienced counsel. Unfortunately, this case presents yet another example.

Venture Corp. Ltd. v. Barrett, 2014 U.S. Dist. LEXIS 147643, 1 (N.D. Cal. Oct. 16, 2014).

Here is what happened: The Defendant served discovery requests on the Plaintiff and wanted the discovery and organized and labeled to identify the requests to which they were responsive; The Plaintiff did not want to do that and instead produced 41,000 pages of discovery, which ended with the Court ordering re-production for not following either Rule 34(b)(2)(E)(i) or (ii). Venture Corp. Ltd., at *1-2.

The Tactical Document Dump

tic-tac-toe-150614_1280Federal Rule of Civil Procedure Rule 34 is supposed to prevent the “document dump,” which was the attorney Cold War equivalent of a doomsday weapon.

Its deterrent was the threat of the opposing side also unleashing a document dump, introducing mutually assured destruction in civil discovery.

Discovery is not supposed to be an experiment in game theory. Discovery must be produced one of two ways under Rule 34(b)(2)(E):

1) “[A] party must produce documents as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the request.” 

2) “[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. A party need not produce the same electronically stored information in more than one form.”

Venture Corp. Ltd., at *2-3.

Apparently no one saw War Games or the Guns of August before producing discovery. This case had a telephonic meet and NOT confer where the Plaintiff claimed the Defendant agreed to accept PDFS or native files in bulk; the Defendant denied such an agreement. Venture Corp. Ltd., at *3.

usb-pen-146884_1280The Plaintiff produced on a flash drive and by email approximately 41,000 of PDF’s and native files with no index, table, or anything but folders with the aforementioned files. Id.

The Court explained that the language of Federal Rule of Civil Procedure Rule 34(b)(2)(E)(i) is clear: if documents are not organized and labeled to correspond to the categories in the request, they must be produced as they are kept in the usual course of business. Venture Corp. Ltd., at *5.

The Plaintiff did not comply with Rule 34(b)(2)(E)(i).

If a party that elects to produce discovery as it is kept in the ordinary course of business, the producing party has the burden to prove their production was made in such a manner beyond a mere claim. Venture Corp. Ltd., at *5-6.

There was substantial he said/she said about the alleged agreement on the organization of the production, with the Plaintiff claiming in an affidavit that Defendant agreed to the production of blended native files and PDFs instead of with a load file and index. Venture Corp. Ltd., at *6-7.

The Court noted that even if there was an agreement on the form of production under Rule 34(b)(2)(E)(ii), that would not absolve the producing party of its obligation to produce ESI as it is kept in the ordinary course of business under Rule 34(b)(2)(E)(i). Venture Corp. Ltd., at *7.

Judge Grewal explained the distinction between Rule 34(b)(2)(E)(i) and (ii):

This distinction matters. Form under subsection (ii) is about whether the production should be native, near-native, imaged as PDF (or more commonly, as TIFFs accompanied by load files containing searchable text and metadata) or in paper (printed out). Providing information about how documents and ESI are kept under subsection (i) “[a]t a minimum . . . mean[s] that the disclosing party should provide information about each document which ideally would include, in some fashion, the identity of the custodian or person from whom the documents were obtained, an indication of whether they are retained in hard copy or digital format, assurance that the documents have been produced in the order in which they are maintained, and a general description of the filing system from which they were recovered.”

Venture Corp. Ltd., at *7-8.

There was no agreement on the form of production, thus the Plaintiff Producing Party had a duty under Rule 34(b)(2)(E)(ii) to show that the production was either 1) as the ESI was ordinarily maintained or 2) in a reasonable form. Venture Corp. Ltd., at *8.

Judge Grewal directly summed up the reality with such a production, that “there is no serious question that a grab-bag of PDF and native files is neither how the Ventures ordinarily maintained the documents and ESI nor is ‘in a reasonably usuable form.’” Id.

The Court ordered the producing party to do the following as a remedy:

(1) Either organize and label each document it has produced or it shall provide custodial and other organizational information along the lines outlined above and

(2) Produce load files for its production containing searchable text and metadata.

Venture Corp. Ltd., at *8-9. [Bold emphasis in original].

Bow Tie Thoughts

Random files make document review a nightmare. I am a big fan of Rule 34(b)(2)(E)(i) because I want discovery organized to correspond to the responsive discovery requests.

It is very easy to set up your review database so there is an entire column with the request for production numbers, empowering the lawyer to issue code responsive discovery to each request. This column can be included in the production to the requesting party.

Some see this as extra work and unnecessary. I see it as a way to organize document review to correspond to the discovery requests in order. Moreover, from a producing party point of view, you want to know what discovery was produced as it relates to discovery request. Any of today’s review applications can issue code according to discovery request if document review is planned, which empowers the producing party to know exactly what is being produced to the opposing party.