Civil Procedure AND Star Wars?

Discovery disputes often result in strong judicial rebukes. Then there are the judges who work in a good Star Wars reference in an opinion. This case has both.

Jedi_MindTrick_Discovery_9352

Judge Richard Jones must have felt he was dealing with a phantom menace of discovery disputes, because most of the issues in the case could have been solved if the parties actually had a meaningful a meet and confer. Instead, the Court dressed down the attorneys on their meet and confer efforts:

This discovery dispute has quickly transformed into a behemoth, replete with competing and disputed descriptions of at the Parties’ efforts to meet and confer. This is not the cooperative discovery contemplated by the Federal Rules of Civil Procedure (the “Rules”) and this Court does not look kindly on the Parties’ behavior, especially when even a quick a review of the record reveals that many of the disputes have since been resolved and would have been resolved even without judicial intervention.

Cedar Grove Composting, Inc. v. Ironshore Specialty Ins. Co. (W.D.Wash. Dec. 23, 2015, No. C14-1443RAJ) 2015 U.S. Dist. LEXIS 171576, at *2-3.

The first issue was a motion for fees by the Plaintiff to recover costs for a motion to compel. The Court denied the motion, holding that the “that Plaintiff did not attempt in good faith to obtain the requested discovery prior to filing its Motion to Compel.” Cedar Grove, at *5. Judge Jones explained that the Plaintiff’s effort to confer with the Defendant over a discovery production could “hardly” be described as done in good faith to resolve issues. Cedar Grove, at *6.

The parties had a telephone meet and confer that had two very different stories, depending on which party was telling the story. The Defendants offered three attorney declarations that recounted the call, which the Plaintiff’s attorney did not dispute. The Court found that “unacceptable.” Cedar Grove, at *7.

In summarizing the dueling meet and confers, the stated the “Plaintiff has given the meet and confer requirement short shift.” Cedar Grove, at *8. Moreover, the Plaintiff never discussed the only remaining discovery dispute between the parties regarding an attorney retained to assess insurance coverage. Id. Furthermore, the motion to compel pertained to amending the Defendant’s privilege log, which was produced before the briefing on the motions had even been finished. Cedar Grove, at *9.

This is right up there with Admiral Kendal Ozzel coming out of light speed directly above Hoth. Unlike Vader, the Court took this moment as a learning opportunity, stating:

The Court will take the opportunity to advise the Parties of the necessity of meaningfully cooperating in discovery. What this means is actively meeting and conferring regarding discovery issues before bringing any concerns to the attention of the Court. In order for the Parties to engage in meaningful, cost-effective discovery, they must cooperate in accordance with the spirit and purposes of the Rules. The Court strongly encourages the Parties to promptly meet their respective discovery obligations without resort to motion practice and advises them that “it would be wise for the parties to consider the letter and spirit of the Rules regarding discovery and engage in open, cooperative, meaningful and efficient discovery practices.”

Cedar Grove, at *10-11, citations omitted.

The next issue addressed whether the attorney-client privilege or work product doctrine applied to communications from an attorney retained to analysis possible liability and its renewal policy. Cedar Grove, at *13. What followed was beautiful analysis of what was protected by the attorney-client privilege and what was protected by the work product doctrine. Effectively summarizing the work product doctrine, for a document to be protected, it must: “1) be ‘prepared in anticipation of litigation or for trial’ and (2) be prepared “by or for another party or by or for that other party’s representative.” Cedar Grove, at *18.

The review of the subject communications sought for production revealed they were covered by the work product doctrine. Cedar Grove, at *18-19.

The Plaintiff argued that the Defendant was not producing written claims files improperly withheld behind the work product doctrine, taking the position that the files “simply must exist.” Cedar Grove, at *19.

The Court addressed the Plaintiff’s argument in footnote 4, stating:

In addressing this argument, the Court is tempted to simply invoke Occam’s razor — “that in explaining anything, no more assumptions should be made than necessary.” See ACLU v. Clapper, 804 F.3d 617, 624 n.2 (2d Cir. 2015) (quoting Oxford English Dictionary (3d ed. 2004)). Perhaps it is too much of an assumption to think that Defendant seriously trying to mislead both Plaintiff and the Court by simply waving its hand and stating that “these aren’t the droids you’re looking for.” Star Wars: Episode IV — A New Hope (Lucasfilm 1977). A simpler explanation is that many of those documents do exist — and Plaintiff has received them (and would have received them) without this Court’s intervention.

Cedar Grove, at *20, footnote 4, emphasis added.

The Court ultimately held that the subject documents were protected by the work product doctrine and likely covered by attorney-client privilege under state law. Cedar Grove, at *21-22.

Bow Tie Thoughts

There are many Federal Judges who masterfully explain Civil Procedure and enjoy Star Wars. It is good to know Judge Richard Jones can discuss the work product doctrine and make an Obe-Wan Kenobi reference.

Conducting privilege review often is reduced to attorneys simply checking a box that an email, document, or Excel file is “privileged.” The term “privilege” cannot be an all-encompassing term to be used in a privilege log. What is the actual privilege being asserted? If it is an attorney-client communication, it has to be a communication from the client to a lawyer seeking legal advice, or a communication from the lawyer to the client giving legal advice.

Lawyers should define the privileges in their case and set-up document review to reflect those privileges. If privilege issue tagging is done, coupled with notes stating the claimed privilege, the reviewing attorneys are building their privilege logs as they conduct document review. This is far easier then trying to later use the Force to construct an effective privilege log as a later step.

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If You Agree to Produce Excel as Native Files, Don’t Produce Tiffs

Judge Paul Cherry wrote a masterful opinion involving an EEOC motion to compel production of agreed upon production formats. The case is an excellent example of the issues very alive over the form of production, understanding technology, educating the Court with expert affidavits, and the value of the meet and confers.

The EECO requested in writing that ESI be produced as Tiffs with Concordance Load Files (strangely referenced as near-native) and spreadsheets/databases in native format. The Defendants agreed to the production formats. EEOC v. SVT, LLC, 2014 U.S. Dist. LEXIS 50114, 3-4 (N.D. Ind. Apr. 10, 2014).

The Defendant produced spreadsheets in Tiff format and employment applications as single-page, non-unitized PDF and TIFF format without a load file. SVT, LLC, at *4.

The Defendants claimed that they had produced their discovery “pursuant to industry standards.” SVT, LLC, at *4.

The EEOC took the very brilliant step of having their Litigation Support Manager explain by affidavit the issues with the Defendant’s production. The Litigation Support Manager explained that the static images of the spreadsheets were “unusable because they cannot be searched or manipulated for analysis.” SVT, LLC, at *4-5.

The Litigation Support Manager further explained how exporting the data from the Defendant’s Kronos system as spreadsheets was not unduly burdensome, as the application had the built-in functionality to run searches, reports and export the data. SVT, LLC, at *5-6.

The Litigation Support Manager further explained that the static images of policies, handbooks, and contracts were “bulk scanned” without any logical unitization or a load file. The production lacking any document breaks made the production unusable. SVT, LLC, at *5-6.

The Court explained that the EEOC could request the Defendants to produce in specific forms pursuant to Federal Rule of Civil Procedure Rule 34(b)(1)(C). In this case, TIFF’s and a load file for some ESI and native file for spreadsheets. SVT, LLC, at *8.

The Defendants produced the ESI without a load file. That did not happen.

The Court rejected the Defendants’ argument that the third-party cloud application used by the Defendant was outside of their “control.” The Court noted testimony from Defendant’s HR representatives on how they could generate reports in Excel from the application. SVT, LLC, at *9-11.

The Defendant did produce the spreadsheets as native files during the briefing of the motion. However, the Court granted the EEOC’s motion AND further ordered the parties to conduct an in-person meet and confer. All discussions over the production had been by written communications, without an in-person meeting. Given the disputes that came up, the Court went so far as saying the Litigation Support Manager was “uniquely qualified” to participate in a meet and confer with the opposing side. SVT, LLC, at *19-20.

Bow Tie Thoughts

Reviewing Excel spreadsheets converted to non-searchable TIFFs is about as fun as looking at the sun with binoculars. Heck, if it happened to me, you would think I was hunting bear from the motion to compel I would write.

Battles over the form of production and Rule 26(f) conferences will not go away, even as we debate amending the proposed amendments to the Federal Rules of Civil Procedure.

Form of production disputes tend to happen because 1) the lawyers are simply fighting for the sake of fighting or 2) they do not know how to conduct eDiscovery. When both reasons occur at the same time, things can get very unpleasant.

The meet and confer can be a very effective time for the parties to come to an understanding about the tech issues in the case. This almost always requires having an eDiscovery attorney or litigation support professional at the meeting to help focus on the solutions to the technology issues.

The EEOC should be commended on having their Litigation Support Manager provide an affidavit that educated the Judge on the form of production and technology to review ESI. Such individuals are extremely important internally to successfully manage cases and can be mission critical in working with the other side.

Conferring on Keywords & A Musical Judge

You know someone is taking a hit when a judge works in references to Pink Floyd’s  “Sorrow” and Simon and Garfunkel’s “Sounds of Silence.” Sound the Division Bell, because there is a Bridge Over Troubled Water.


Magistrate Judge Jonathan Goodman did exactly that in Procaps S.A. v. Patheon Inc., 2014 U.S. Dist. LEXIS 35225 (S.D. Fla. Mar. 18, 2014) because of an attorney responding to opposing counsel’s emails with cryptic messages on search terms and their Spanish translations because of a party located in Columbia. Some messages were simply not answered. As such, a motion to compel was filed over search terms. At the hearing, the non-moving party represented they had been in contact with their custodians about search terms.

The short story of what happened is that lead attorney did not get any input on search terms from his clients’ custodians before the moving party filed their motion to compel. Procaps S.A., at 10-11.

Even though the attorney broke their silence over conferring on search terms, the Court ordered the following:

Nevertheless, to the extent that there is any doubt about whether this Court is imposing the requirement and to generate a ruling on which a fees award can be based, the Court grants Patheon’s motion and requires Procaps to have its counsel obtain search word input from all the ESI custodians. The Court may enter further orders on the search term methodology and/or the specifics of the search term list after receiving additional information from Procaps about the search term protocol.

Procaps S.A., at *14.

The Court awarded the prevailing party $3,750 in costs (down from $5000). Procaps S.A., at *16. The Court ordered the lead attorney to pay $1,000 of the award, because “his non-responsive and/or vague email responses triggered this discovery dispute.” Procaps S.A., at *17.  The Court further noted statements on the firm’s website about attorneys with eDiscovery experience who were involved in the case and “urged (though not required) to explore which other attorneys (besides lead trial counsel) caused, or helped  cause, this discovery motion and to determine whether those other attorneys (rather than the firm itself) should pay all or some of the $2,750 fees award now allocated for law firm responsibility (or some of the $1,000 awarded against lead trial counsel).” Procaps S.A., at *17-18.

Bow Tie Thoughts

I respect Jonathan Goodman’s command of the law and use of song references to make his point on an attorney’s silence in conferring over search terms.

Attorneys cannot be another brick in the wall of un-cooperation over Rule 26(f) conferences. eDiscovery requires parties to both 1) confer with the opposing side on the subject matter of the case and 2) conduct client/custodian interviews to determine how technology is used, terms of art, methods of communication and anything else relevant to determine “search terms.”

Discussing “search terms” is not dead because of “predictive coding.” Attorneys still have to know the subject matter of the case in order to use ANY type of advanced analytics so the analysis has content. Lawsuits are about specific issues which have to be defined in order for “technology assisted review,” “visual analytics” or any other form of data clustering to make sense. These topics must be discussed for in order to identify relevant ESI, so efforts are not lost on the dark side of the Moon.

Triangulating Discovery Productions

Judge William Orrick summed up a basic truth of eDiscovery: In the age of electronically-stored information (“ESI”), production of all relevant, not privileged and reasonably accessible documents in a company’s custody and control is easier said than done. Banas v. Volcano Corp., 2013 U.S. Dist. LEXIS 144139, at *5 (N.D. Cal. Oct. 4, 2013).

ChartDividersThe Defendant in Banas had produced 225,000 documents in a rolling production through “triangulation.”

This methodology involved selecting subsets of employees likely to have relevant information, those who sent or received information, those who could have been involved in the case and those “most likely” to have relevant information. Banas at *4.

The Court stated this approach could have been reasonable, but two problems emerged: 1) The methodology was never discussed or agreed to with the Plaintiff; and 2) Multiple deponents did not have their email searched prior to their depositions. Banas at *4-5.

The Plaintiff also had a hard drive that contained ESI that was not produced by the Defendant. Id. 

The Court ordered the supplement search and production of ESI from the deponents whose ESI had not been searched. Banas at *6.

The Court stated that the Defendant’s search methodology was not unreasonable or designed to conceal information. Banas at *7. However, as the production was conducted on a rolling basis, the Plaintiff could not have been immediately aware of any production gaps. Banas at *6.

As such, supplemental discovery was reasonable.

The Court also highlighted the Northern District of California’s model order requiring parties to meet and confer over the search of ESI prior to responding to a discovery request. This is one of the first opinions to reference the model order. Following the model order is highly advisable for anyone in the Northern District of California. It also has very good best practices for any attorney to consider in a case with electronically stored information.

Bow Tie Thoughts

Identifying relevant custodians and their electronically stored information requires using technology and strategy. Many can feel like it is trying to find a teardrop in the ocean.  

Analyzing communication patterns, clustering email based on domain names or conducting searches based on date ranges and subject matter are just a handful of ways to identifying ESI that could support a parties claims or defenses. Running searches based on discovery requests is another.

I recently had a product demonstration of Kroll Ontrack’s eDiscovery.com Review. Below you can see the features of this product can help search for responsive ESI.

Banas v. Volcano Corp., also has a very important message about the meet and confer process. Parties really should discuss what information is subject to the lawsuit, relevant custodians and search methodologies. While I do not agree with the idea of discussing what tools parties should use, because it can cause unnecessary fighting, agreeing on how ESI will be identified certainly does not hurt between educated attorneys.

 

Meet & Confer at 10 Paces

role_play_thmThere are attorneys who believe the most effective Rule 26(f) meet and confer is simply meeting at dawn with dueling pistols.

The parties in Procongps, Inc. v. Skypatrol, LLC, fought over proclaimed inadequate productions, failures to adequately meet and confer and the defensibility of their productions. Procongps, Inc. v. Skypatrol, LLC, 2013 U.S. Dist. LEXIS 47133, 9-12 (N.D. Cal. Apr. 1, 2013).

The parties Spireon and Skypatrol had many dueling “they did/they did that first” claims before the Court.

Spireon took issue with a discovery production of “410,000 pages of documents” that contained duplicated information. Procongps, Inc., at *8.

According to Spireon, Skypatrol proposed discussing limiting the scope of ESI in the case. According to Spireon, they were willing to “discuss a search of a limited number of custodians using identified terms only after Skypatrol produced documents that could be identified through traditional methods of conferring with Skypatrol’s employees and agents to identify and produce responsive documents.” Procongps, Inc., at *7.

The parties exchanged discussions about discussing search terms, provided that Skypatrol first met is obligation to produce responsive discovery. Procongps, Inc., at *7-8. Skypatrol’s production followed after these exchanges. Spireon then sought an order from the Court for Skypatrol to identify its production by category pursuant to Federal Rule of Civil Procedure 34(b)(2)(E)(i). Procongps, Inc., at *8.

Skypatrol claimed that they had requested to meet and confer over search terms for months. According to Skypatrol, Spireon refused to meet to discuss discovery productions and exchange search terms. Procongps, Inc., at *8.

Skypatrol argued, “Spireon insisted that Skypatrol conduct its own searches and produce documents from over 200 GB of data.” Procongps, Inc., at *8.

Skypatrol claimed that Spireon could not both refuse to cooperate over limiting the scope of discovery through cooperation, then claim Skypatrol produced “too many” documents. Procongps, Inc., at *8-9.

Furthermore, Skypatrol explained that they did run a de-duplication process over its production; the “duplicative” files were email attachments to messages they included for a complete production. Procongps, Inc., at *9-10.

Two crossed ancient pistols isolated on white

Skypatrol also argued that Spireon’s production was not forensically sound (defensible), because 1) Spireon could not identify any custodians from whom ESI has been collected; 2) Any search terms used to identify responsive ESI other than “Skypatrol;” and 3) The volume of ESI that had been collected or produced by another in the litigation. Procongps, Inc., at *10-11.

After the parties finished taking their respective shots at the other, the Court stated the following:

Based upon the record before the Court, it appears that the parties have not engaged in a meaningful meet and confer process with regard to ESI production. It is the Court’s view that the current document issues could have been avoided if the parties had cooperated with each other. The relief that the parties seek is essentially an order directing the other side to comply with their discovery obligations, and the Court believes such an order would not actually remedy any problems because both parties assert that they have and are fully complying with their discovery obligations. The Court finds that the most efficient solution is for counsel who are responsible for ESI production to engage in an in-person meet and confer regarding all outstanding ESI production issues in an effort to resolve those matters. If the meet and confer is unsuccessful, the Court will refer any disputes regarding ESI production to a Magistrate Judge for resolution.

Procongps, Inc., at *11-12.

Bow Tie Thoughts 

The Dreyfus Protocol should never be included in a meet and confer.

eDiscovery requires attorneys to not simply talk about cooperating, but to actually cooperate. Determining search methodologies, the scope of discovery and production formats do not require the same zeal as cross-examining an adverse witness. It is not supposed to be a game of “gotcha,” but determining the technical framework to get to the merits of the case. This requires attorneys to be tactical and have a strategic vision for how they will handle ESI in their cases. Moreover, parties must engage in more than pillow talk to actually reach agreement on eDiscovery protocols.

The adult supervision in eDiscovery often comes from eDiscovery attorneys in law firms and litigation support professionals. How data is collected, the scope of ESI in the lawsuit, data reduction strategies and review methodologies are vital to litigating a case pursuant to Federal Rule of Civil Procedure Rule 1. Fundamentally, these are the professionals who advise attorneys to not request “any and all” ESI, but “all unique ESI” to limit duplicate data in ESI productions. The value of these professionals cannot be overstated in helping litigators be cost efficient and effective.

Attorneys who want to learn effective eDiscovery strategy should read Michael Arkfeld’s Best Practices Guide for ESI Pretrial Discovery: Strategy & Tactics. It is one of the best books on the subject. In full disclosure, Michael is a good friend and I have helped on many webinars. The book offers a great overview of issues, checklists and discovery strategies every litigator should before a meet & confer.

Cowboys & Lawyers: Spaghetti Western eDiscovery

Judge Facciola stands as one of the single most prolific Federal Magistrate Judges in the United States.

Once again, the bow tie wearing jurist eloquently laid down the law in Tadayon v. Greyhound Lines, Inc. The discovery order concluded with the following passage:

III. High Noon

As explained at the discovery status hearing held on April 30, 2012, there is a new sheriff in town—not Gary Cooper, but me. The filing of forty-page discovery motions accompanied by thousands of pages of exhibits will cease and will now be replaced by a new regimen in which the parties, without surrendering any of their rights, must make genuine efforts to engage in the cooperative discovery regimen contemplated by the Sedona Conference Cooperation Proclamation. First, the parties will meet and confer in person in a genuine, good faith effort to plan the rest of discovery. They shall discuss and agree, if they can, on issues such as the format of any additional productions, the timing and staging of all depositions, the submission to each other of discovery reports, and the scope and timing of any Federal Rule of Civil Procedure 30(b)(6) depositions. The parties will then jointly submit their discovery plan for my approval. I commit myself to work with them in resolving any disagreements, whether they arise initially or during discovery. To that end, I will schedule a telephonic status conference every two weeks in which I will ask the parties about their progress (or lack thereof) and try to resolve any disagreements they have.

Tadayon v. Greyhound Lines, Inc., 2012 U.S. Dist. LEXIS 78288, 15-17 (D.D.C. June 6, 2012).

What procedural history did the parties ride through for the Court to order a telephonic status conference every two weeks?

The Wild Bunch

There is an old cowboy quote that applies to lawyers and eDiscovery: Generally, you ain’t learnin’ nothing when your mouth’s a-jawin’.

The case involved patent infringement claims of wireless technology wrongfully being used on the Defendants’ busses. Both sides had dueling discovery motions.

The pro se Plaintiffs brought a motion to compel discovery responses after the Defendants at first produced paper and then ESI.  The Court quickly held the motion to compel moot. Tadayon, at *2.

Unforgiven: Clawing Back Inadvertent Productions

The Defendants inadvertently produced privileged discovery that they “clawed back” pursuant to agreement. The Plaintiffs argued that any privilege was waived because of the Defendants’ “hurried negligence.” Tadayon, at *4.

The Plaintiffs’ argument failed, because the clawback agreement was not in any way conditioned.  Id.  As the court stated, “Since the right to clawback was not so conditioned, the agreement stands as written and defendant may recall the privileged documents, irrespective of whether or not its initial production was negligent.”

My Darling Clementine, Plaintiffs’ Sanctions Are Denied

When you’re throwin’ your weight around, be ready to have it thrown around by somebody else.

Unknown Cowboy Quote

The Plaintiffs sought sanctions and attorneys’ fees against the Defendant, which the Court denied. The Plaintiffs claimed that the Defendants did not timely respond to discovery requests. Moreover, the Plaintiffs alleged that the Defendants purposely delayed their production until they filed a motion to stay. Tadayon, at *4-5.

The Plaintiffs based their sanctions motion on the timing of communications with the Defendant, production history and the District Court’s original minute orders regarding the Plaintiffs’ discovery requests. Tadayon, at *4-5.

Judge Facciola’s analysis focused on the minute orders to determine if Rule 37 sanctions (attorneys’ fees) were warranted. The Court held sanctions were not warranted, because the minute orders applied to the Defendants’ obligations mandated by Rule 26 of the Federal Rules of Civil Procedure, not the obligations imposed by a prior court order, as required by Rule 37. Tadayon, at *7-8.

Even if sanctions had been warranted, an award of attorneys’ fees was not available to the Plaintiffs, because they were pro se litigants.  Pursuant to the Rule 37 and case law, pro se plaintiffs’ time does not constitute “expenses incurred” for attorneys’ fees. Tadayon, at *9-11 (Please see the opinion for the detailed analysis of this issue).

Blazing Saddles

The Court held that the Plaintiffs’ motion to compel was not “substantially justified” under Rule 37, because of the timing of the Defendants’ production and the filing of the motion. Tadayon, at *12.

Judge Facciola included a timeline of the Defendants production and the filing of the motion to compel.  Tadayon, at *14. The Court outlined that the Defendants produced 45,417 pages of responsive discovery 10 days after the District Court’s minute order.  Tadayon, at *15. The Defendants continued to supplement their production three times. On the date of the last production, the Plaintiffs filed their motion to compel.  Id. As the Court explained:

[Pl]aintiffs filed their motion compel, even though by the time the document was filed, most of the discovery disputes had been rendered moot by the production of the electronic version of the documents as well as by plaintiffs’ development of their own database. Furthermore, at no point in time after the filing of plaintiffs’ motion to compel did they consider withdrawing it or modifying it even though they knew that most of the issues had been rendered moot. 

Tadayon, at *15.

The Courted ordered the Plaintiffs to show cause why they should not be sanctioned with attorneys’ fees for the time the Defendants spent opposing the motion to compel. Tadayon, at *15.

Bow Tie Thoughts: Dances with ESI

eDiscovery should not be the gunfight at the O.K. Corral. Parties can reduce motion practice and move their cases forward by cooperating effectively during their Rule 26(f) meetings. I stress multiple meetings, because it is unlikely one conference will settle issues such as collection, search terms and production dates.

Cooperating at a meet and confer does not mean surrender. There are technical issues that must be addressed when discussing electronically stored information. According to Michael Arkfeld, some of these issues include:

Understanding Each Party’s IT System

Preservation of ESI

Agreed upon Computer Terminology (how do you define metadata, forms of production, etc)

ESI Types and Storage Media, Devices & Locations

Production Protocols 

Protecting Privileged ESI

Arkfeld’s Best Practices Guide for Electronic Discovery and Evidence (2010-2011), Appendix B, “Meet and Confer” Planning Guide.

There of course are many more issues that can go into great detail at a Rule 26(f) conference. However, these issues are better addressed with attorneys cooperating and not playing Billy the Kid.

Form of Production: Add that Topic to the Meet & Confer Check-List

The Defendants in Specht v. Google, Inc., sought of $21,951.16 for discovery costs.  $17,778.64 of that total was for creating digital versions of the discovery. Specht v. Google, Inc., 2011 U.S. Dist. LEXIS 68968, 9-11 (N.D. Ill. June 27, 2011)

As a general rule, such costs are taxable if the parties have agreed to produce discovery electronically.  Specht, at *9, citing Fast Memory Erase, LLC v. Spansion, Inc., No. 10-C-0481, 2010 U.S. Dist. LEXIS 132025, 2010 WL 5093945, at *5 (N.D. Tex. Nov. 10, 2010).

The Defendants had a significant problem in seeking their costs: There was no evidence the parties agreed to produce discovery electronically.  Specht, at *10.

The best the Defendants could produce was an email that an associate wrote for a partner to review and comment on.  Specht, at *9.

There was no evidence that the draft email had been sent to the Plaintiffs.  Specht, at *9.  Moreover, the draft email did not reference an actual agreement to produce hard copy discovery in electronic format.  Specht, at *9.

The email did reference producing metadata for specific ESI, however, the Court stated that the “Defendant has not adequately documented that an agreement existed between the parties to produce documents electronically.” Specht, at *9-10.

The Court found the $17,778.64 was not recoverable, because the Defendants did not show there was an agreement to produce documents electronically.  Specht, at *10.

Bow Tie Thoughts

This case illustrates the realities of modern litigation. The failure to document an agreement for producing ESI or hard copy documents in electronic format can result in costs for producing discovery denied.  It is a prudent topic to add to a meet and confer “to do” list.

Attorneys should discuss the form of production during the meet and confer process and codify their agreement in a discovery order.  Parties should discuss how databases should be produced, whether hard copy documents are to be scanned and OCR-ed, types of metadata to be produced and how costs should be apportioned.  These are just a few examples of topics for a meet and confer.

Establishing expectations on the above topics can help control litigation costs and put a party in a position of strength if there is a later dispute.