Do You Really Need to Ask for Metadata?

There are many lawyers who have an unnatural fear of producing associated metadata with ESI productions. I have always viewed this as producing printed paper without ink on the pages. This is one of cases where I scratch my head at the way the Federal Rules of Civil Procedure is interpreted.

Here is what happened: Requesting Party brought a motion to compel ESI in native file format with associated metadata after a piecemeal production. Producing Party agreed to produce the ESI during a teleconference and a Court ordered was then entered. McSparran v. Pennsylvania (M.D.Pa. Feb. 18, 2016, No. 1:13-CV-1932) 2016 U.S. Dist. LEXIS 19993, at *9-11.

The Producing Party sought a modification of the Court order to not include metadata, claiming the Requesting Party did not originally request the associated metadata. McSparran, at *10. The Court AGREED with the Producing Party.

The Court cited to the metadata definition that metadata is “imbedded information that describes the history, tracking, and management of an electronic document.” McSparran, at *10, citing Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 647 (D. Kan. 2005). Metadata is produced by Court order if 1) the metadata “was specifically requested in the initial document request, and (2) the producing party has not yet produced the documents in any form.” McSparran, at *10, citing Aguilar v. Immigration & Customs Enforcement Div., 255 F.R.D. 350, 357 (S.D.N.Y. 2008).

Metadata is not produced if it was not initially requested or if the ESI was produced in another form. McSparran, at *11, citing Romero v. Allstate Ins. Co., 271 F.R.D. 96, 106 (E.D. Pa. 2010) and Autotech Techs. Ltd. P’ship v. AutomationDirect.com, Inc., 248 F.R.D. 556 (N.D. Ill. 2008).

The Court held it would be unduly burdensome for the Producing Party to produce the ESI with metadata after originally producing the discovery as paper. McSparran, at *11.

Bow Tie Thoughts

I think cases where the Producing Party hides from producing metadata from standard ESI, such as Email, Excel, Word files, misreads the Federal Rules of Civil Procedure and ignores the realities of how collection software works and productions of ESI are made.

In my opinion, not producing embedded or substantive metadata is 1) producing the ESI in not a reasonably useable form, and 2) requires an alternation of the ESI, so the production is not in the ordinary course of business.

A collection expert using any of the great forensic tools is capturing the “data about the data” when they defensibly collect ESI. Virtually all the review applications on the market allow users to select which metadata to produce, such as To, From, Subject, Body, etc., etc. To do a “native file” production without metadata would require: 1) actively selecting not to produce metadata and 2) scrubbing the metadata from the native files. I would argue that both violates the Federal Rules of Civil Procedure and would make a solid argument for the willful destruction of evidence if an attorney is erasing track changes and other file history.

I think there is a strong argument that ESI without metadata is not in a reasonably useable form, as it hinders document review. Review applications use the metadata to populate the database of “objective coding,” the information gleamed from the four corners of a document. The content of ESI is also needed for most advanced analytics review applications to analyze communication patterns for relevance or privilege. Eliminating that information makes reviewing a production harder, driving up costs in violation of the spirit of Federal Rule of Civil Procedure Rule 1.

My views on metadata are not the law, but I think they would make very strong arguments, if coupled with expert affidavits explaining to a Court how “metadata” is collected and what it takes to actively decide not to produce the ESI as it is ordinarily maintained.

Good Idea to Request Metadata

The form of production and metadata are center of many motions in compel. One such battle was fought in a case in Alaska regarding insurance coverage.

The requesting party sought the production of an affidavit of a deceased insured that was key to determining whether a vehicle was covered or not. The first affidavit was not signed, but another version was after some modifications. Johnson v. RLI Ins. Co., 2015 U.S. Dist. LEXIS 115308 (D. Alaska Aug. 31, 2015).

The request for production sought the original affidavit and “any draft, revision, and previous version of this affidavit.” The producing party produced the discovery as .pdf’s. Johnson, at *15.

Judge Sharon Gleason summarized the issues as follows:

In the context of this case, a fully responsive production that included revisions and previous versions would implicitly include the draft affidavit documents in the original Microsoft Word format in which they had been drafted, because in that format revisions and the authors of those revisions could be visible within the document metadata that would not be visible in another form. And the need for native-format documents and the accompanying metadata regarding the drafts is heightened here, where John Stenehjem is deceased and RLI seeks to introduce his signed affidavit into evidence under Federal Rule of Evidence 807’s residual hearsay exception.

Johnson, at *15.

The Court explained that the metadata within the draft affidavits would be highly relevant to the claims in the case. Johnson, at *15-16. Converting the Word documents to .pdf made it “more difficult…to use the produced documents efficiently in this litigation.” Johnson, at *16. Moreover, the requesting party did not have the ability to access or search the relevant information. As such, the Court granted the motion to compel the affidavits in native file format. Id.

The opinion took a slight detour on native file production of the claim file. The Court held the requesting party did not explicitly state they sought the production of embedded metadata, thus denied the motion to compel. The Court made a surprising statement that production of the claim file as .pdfs or PAPER was in a reasonably useable form. Johnson, at *16-17.

There is a good chance that part of the claim file was paper originally, such as handwritten notes, which would be a “document” under the Federal Rules of Civil Procedure and not ESI. Regardless, this was surprising, as most Courts reject anyone converting ESI to paper for a production.

Bow Tie Thoughts

It is a safe practice to always request embedded and substantive metadata. Knowing who is the author of ESI, who accessed files, when they were printed, should be done as standard operating procedure. Most of today’s review applications have advanced analytics that empower attorneys to create timelines, cluster communications between senders, and recognize communication patterns based on context. These features all require metadata. Producing ESI without this metadata hobbles an attorney from analyzing not just the opposing party’s discovery, but their own.

Broken Trust Does Not Mean Discovery Sanctions

Parties end up in litigation often because trust has been broken. Distrust can make discovery in civil litigation even more of a legal brawl than anyone enjoys.

In Malone v. Kantner Ingredients, the Plaintiffs seriously did not trust the Defendants’ discovery productions.

The Plaintiffs alleged the Defendants failed to produce emails and transaction invoices located on a specific server. The Defendants were ordered to search the specific computer servers to determine if the imaging performed at the beginning of the case was complete. Malone v. Kantner Ingredients, 2015 U.S. Dist. LEXIS 41951, at *2-3 (D. Neb. Mar. 31, 2015).

The Defendants imaged the subject server and provided the full mirror image to the Plaintiffs. The Plaintiffs conducted their own analysis of the server compared to the prior production. The Plaintiff then brought a motion to show cause that alleged the Defendants’ council and paralegal failed to comply with the Court’s order. Furthermore, the Plaintiffs alleged the Defendants “destroyed or tampered with evidence, and provided untruthful information to the court regarding the existence of discovery requested by the plaintiffs.” The Plaintiff sought to recover the costs incurred by their own computer forensic expert in analyzing the supplemental server production. Malone, at *4.

The Court rejected the Plaintiffs’ arguments. The Court explained that the original order required “the defendants to determine if the server imaging performed by the defendants at the outset of the case was a full and complete imaging: It did not require the defendants to repeat their ESI review and production if the 2012 initial data imaging appeared to be full and complete.” Malone, at *5-6, emphasis added. The Court actually stated the Plaintiffs’ arguments “misconstrue[d] the intended meaning” of the original Court Order. Malone, at *6.

The Court explained that the Defendants actually exceeded the original Court Order by producing the imaged server to the Plaintiff. Malone, at *6, fn 4. Moreover, the server production contained all the emails, invoices, and associated metadata that the Defendants should have produced. Malone, at *6. Furthermore, the Plaintiffs’ use of their own expert was reasonable to “bring some closure to the ongoing ESI discovery battle.” Malone, at *6.

Magistrate Judge Cheryl Zwart also highlighted a maxim of discovery: the standard for productions is reasonableness, not perfection. Malone, at *7-9.

The fact mistakes were made in a production did not justify imposing sanctions; especially considering the fact the Plaintiffs had full access to the imaged server. Malone, at *8. The Court held that the Defendants’ attorney and paralegal did not “provide misleading or untruthful information to the court.” Furthermore, there was no evidence that the “Defendants, their counsel, or their counsel’s paralegal destroyed, hid, or purposefully (or even recklessly) failed to produce responsive ESI.” Malone, at *9. As such, the Court held that requiring the Plaintiffs to pay their own expert’s fees was a “reasonable method for sharing the cost of ESI discovery” in the dispute. Malone, at *8-9.

Judge Zwart did have some prolific words after the revelation that the parties did not discuss the collection or production of ESI at the beginning of the case: “Had those discussions occurred, the court believes all parties’ discovery costs would have been minimized.” Malone, at *6-7.

Bow Tie Thoughts

A little planning goes a long way. Parties should discuss the scope of discovery at a Rule 26(f) conference. Sources of electronically stored information, possible relevant data, and collection methodologies are important topics that can dramatically reduce discovery disputes.

Magistrate Judge Cheryl Zwart is now a judge to watch on eDiscovery cases. Judge Zwart did a masterfully job with the opinion in analyzing the facts of the case and law. Moreover, there is a nice footnote on the use of predictive coding being an accurate and more efficient method for document review, referencing both Nicholas Barry, Man Versus Machine Review: The Showdown Between Hordes of Discovery Lawyers and A Computer-Utilizing Predictive-Coding Technology, 15 Vand. J. Ent. & Tech. L. 343 (2013) and Maura R. Grossman & Gordon V. Cormack, Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, 17 Rich. J.L. & Tech. 11, P 5 (2011).

Can You Get a Default Judgment for Producing TIFFs?

A Plaintiff brought a motion for terminating sanctions pursuant to Federal Rule of Civil Procedure 37(b), based on the Defendant’s untimely production of ESI as non-searchable TIFFs without metadata.

The Court denied the default sanction, but instead ordered the production in searchable format with metadata. Kwan Software Eng’g, Inc. v. Foray Techs., LLC, 2013 U.S. Dist. LEXIS 144882, 2-5 (N.D. Cal. Oct. 1, 2013).

Part of me would love to see a judicial nuclear strike on a party who produced static images without metadata. It literally would stop everyone who plays production games dead in their tracks from the smoldering wreckage of terminating sanctions. That being said, the proportional response in compelling production as native files is the right call.

The Defendants’ untimely discovery production took place between August to September 2013. The Defendant first produced 28,786 pages; followed by 100,692; and 99,778 pages. The production was in non-searchable TIFFs without any associated metadata. The parties had agreed to produce all ESI in searchable form with associated metadata. Kwan, at *2 fn 2.

The Court explained terminating sanctions should only be done in extreme circumstances. Kwan, at *3, citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). The test for terminating sanctions is:

(1) the public’s interest in expeditious resolution of litigation;

(2) the court’s need to manage its docket;

(3) the risk of prejudice to the other party;

(4) the public policy favoring the disposition of cases on their merits; and

(5) the availability of less drastic sanctions.

Kwan, at *3, citing, Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011).

There is another key factor: the violation must be in bad faith or willful. Kwan, at *4.

The Court ordered a less drastic remedy than default. The Defendant agreed to produce its discovery within a week in a searchable format with metadata. Kwan, at *4-5.

Bow Tie Thoughts

Native files should be produced natively.

There are far too many attorneys who want to produce as TIFF’s or PDF’s because they:

1) Want a Bates Number on everything;

2) Do not understand control numbers, MD5 Hash Values, or any other way to track native files in a production;

3) Fear native files because they do not understand technology; or

4) Just want to mess with the other side.

The valid exceptions for producing ESI as a static image is when there is information that must be redacted or the odd case where the ESI is an exotic file that has to be translated into a reasonably useable form which is a static image.

Producing native files as TIFFs can have the prejudicial effect of driving up discovery costs. Native files and associated metadata can be analyzed with data clustering, concept searches, visual analytics to see communication patterns or expedited review with predictive coding. Producing native files as TIFFs is like setting off an electro magnetic pulse in a law firm. The  advanced search technology is effectively rendered useless, because a TIFF is effectively a non-searchable digital piece of paper. The only effective advanced analytics the lawyers have is to look at the TIFF.

Producing as TIFFs is not done on accident. It is a decision made by a producing party. Could that ever amount to willful conduct to drive up the cost of discovery in violation of Federal Rule of Civil Procedure Rule 1? I think it could, but a Judge would be unlikely to issue a default judgment when the ESI could be produced natively with a sternly worded Court order.

A Good Cause Metadata Nursery Rhyme

A Plaintiff sought the production of metadata of a Word document that was created after the commencement of the lawsuit. The Word document was the Chinese translation of hours the Plaintiff, a nanny and housekeeping, worked for the Defendants. Wang v. Yao, 2013 U.S. Dist. LEXIS 70352, 4-6 (E.D.N.Y. May 17, 2013).

The Plaintiff had to show good cause for the disclosure of the post-litigation metadata, which was relevant to the  subject matter involved in the action.” Wang, at *4-5, citing Fed. R. Civ. P. 26(b)(1).

The Court held the Plaintiff to make a showing of good cause, because the “handwritten notes are controlling as to any discrepancy, and no question that the Word document Bates-stamped J00001 – J00101 was created after commencement of this action, production of the requested metadata would appear to be unnecessary.” Wang, at *5, citing Fed. R. Civ. P. 26(b)(2)(C)(i).

Bow Tie Thoughts

Just what metadata had not been produced with the Word document? How was the Word document collected? How was it produced? These questions are not answered in this case.

In litigation with individual parties, it is very tempting to simply drag and drop a native file over for production. I would encourage parties to do such with one of the inexpensive defensible collection tools. There are many options that could be in the low hundreds. This would ensure any metadata is properly preserved.

Generally speaking, parties are able to make a good cause showing for metadata associated with native files. This case was different because the native file was a post-litigation translation of handwritten Chinese. There was not an issue with the original document, thus any differences between the native file and the handwritten record would favor the original document.

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.

All You Need is Metadata

When it comes to native files with associated metadata, there is no substitute.

In a motion battle over a stipulation on the form of production, the Plaintiff stated that ESI should be produced in native file format with associated metadata.  In the event ESI needed to be redacted or was not available, it could be produced as a static image with a searchable text file and specific metadata.  In re Porsche Cars N. Am., Inc. Plastic Coolant Tubes Prods. Liab. Litig., 2012 U.S. Dist. LEXIS 7999, 10 (S.D. Ohio Jan. 24, 2012).

The Plaintiff went so far as to define “metadata” as follows:

‘Metadata’ means: (i) information embedded in or associated with a native file that is not ordinarily viewable or printable from the application that generated, edited, or modified such native file which describes the characteristics, origins, usage, and/or validity of the electronic file; and/or (ii) information generated automatically by the operation of a computer or other information technology system when a native file is created, modified, transmitted, deleted, or otherwise manipulated by a user of such system.

In re Porsche Cars, at *11, fn 3, Stip. § I(B) at 2.

The Producing Party attempt to throw spikes onto the discovery Autobahn, stating they would only produce native files with metadata only after the Plaintiffs demonstrated a particularized need for the native files. In re Porsche Cars, at *11.

The Producing Party argued that producing in native file format invited “control risks” and could not be Bates numbered.  In re Porsche Cars, at *11-12.

The Producing Party argued that the Plaintiffs had failed to show how the requested metadata was relevant to the lawsuit. In turn, the Plaintiff argued “metadata already exists in each document such that they are merely requesting one form of production (in which the metadata is visible) as opposed to another (in which the metadata is not visible).”  In re Porsche Cars, at *12.

There was nothing in the stipulation that would deprive the Producing Party the right to object to specific discovery requests. Id.

Here I Go Again: Federal Rule of Civil Procedure Recap

A requesting party can state the form of production in their request pursuant to Federal Rule of Civil Procedure Rule 34(b)(1)(C).  This Rule allows a party to also request metadata when stating the form of production. In re Porsche Cars, at *12-13, citing Aguilar v. Immigration & Customs Enforcement Div. of U.S. Dep’t of Homeland Sec., 255 F.R.D. 350, 355 (S.D.N.Y. 2006).

Under Rule 34(b)(2)(D), the producing party can object to the form of production, triggering a meet and confer between the parties to resolve the production dispute. In re Porsche Cars, at *13, citing Fed. R. Civ. P. 34(b) advisory committee’s note, 2006 amendment.

Case law has held that the objecting party must demonstrate any undue burden in producing electronically stored information.  In re Porsche Cars, at *13.

Production Traffic Stop

The Court distinguished the Defendants’ opposition cases to producing metadata on the grounds the cases involved native file/metadata production requests where the producing party had already produced files in a different format.  In re Porsche Cars, at *13-14.

In the current case, no production had taken place yet, as the dispute was over a production stipulation.  As stated in Aguilar, “[c]ourts have generally ordered the production of metadata when it is sought in the initial document request and the producing party has not yet produced the documents in any form.” In re Porsche Cars, at *14, citing Aguilar, 255 F.R.D. at 352.

The Court held the following:

Here, Plaintiffs have specified a production format pursuant to Rule 34(b)(1)(C) well in advance of any production. The Court finds no requirement that Plaintiffs specify a form of production pursuant to Rule 34(b)(1)(C) and simultaneously demonstrate why this form is relevant to each of their requests. Once Plaintiffs request native format/metadata at the outset, the burden would shift to PCNA to object to this form as unduly burdensome. At that point the parties would discuss the need for the requested format and negotiate accordingly. Thus, the Court will grant Plaintiffs’ request for native format with metadata absent a showing by PCNA that such a production would be unduly burdensome.

In re Porsche Cars, at *15.

Bow Tie Thoughts

In the now over five years since the 2006 Amendments to the Federal Rules of Civil Procedure, there should be no question that a requesting party can state the form of production in their request.  While the producing party can object to the form, there is absolutely no requirement that a requesting party must at the outset demonstrate a showing that native files are relevant; Rule 34 gives the requesting party the right to name their form of production.

Arguing that native files would be difficult to control without Bates numbering in a production is problematic at best. Native files collected in a defensible manner have a control number with the MD5 Hash value. Using the MD5 Hash is one way the files can be managed, but the machine language of a random 32 alphanumeric is not really “human friendly” for review.  However, there can be a “human friendly” control number with the same numbering methodology of Bates numbers created during data processing for the discovery platform the production will ultimately be reviewed in by the requesting attorneys.

In the event of any claims of spoliation, forensic analysis would show that the file type has been changes. As for the control number, parties must learn to let go of the idea that ESI is like paper that must be physically branded with a number for document review. The fact a “control number” or “Document Id” appears in a database with the corresponding file should not be treated any differently than a paper document with a Bates number on it for document review.

Bates Numbering ESI & Other Dates with a Recycle Bin

There are battles that do not make sense.  This is one of those cases.

In a civil dispute over fraudulent investments, the Plaintiff brought a motion to compel the Defendant to “Bates Label” electronically stored information in native file format, because the local Discovery Practices Handbook required Bates numbering of ESI.  U.S. Holdings, Inc. v. Suntrust Bank, 2011 U.S. Dist. LEXIS 29956, at 13-14 (S.D. Fla. Mar. 23, 2011).

The Defendant countered that to “Bates Label” their prior discovery produced in native file format, they would need to re-produce it as TIFF’s for branding of Bates Labels.  U.S. Holdings, Inc. at *13.  Moreover, the conversion costs would be between $16,000 to $75,000.  Id.

The Plaintiff’s counter argument was $16,000 was not overly expensive given the claims in the lawsuit (notice no mention of $75,000).  U.S. Holdings, Inc. at *13.

The Court stated that the local “Discovery Practices Handbook” required ESI to be produced with Bates Labels.  U.S. Holdings, Inc. at *13.

However, the Court denied the Plaintiff’s motion to compel, but ordered all future ESI productions to be Bates Labeled (and by default converted to a static image and therefore driving up the costs of discovery).  U.S. Holdings, Inc. at *13-14.

The Court explained that the Plaintiff did not counter the Defendant’s argument that Bates Labeling of ESI requires conversion of native files to TIFF or PDF.  Id.

The Court specifically held:

 

It appears that there was no objection to the production of ESI in native format; and, it appears that the vast majority of the ESI produced is not directly relevant to the claims and defenses in the case at bar. Therefore, at this stage of the litigation, and under the circumstances of this case, Defendants are not be required to Bates label the ESI already produced. However, any future production of ESI shall be Bates labeled.

U.S. Holdings, Inc. at *13-14.

 

Bow Tie Thoughts

Any default local “discovery handbook” requiring ESI to be converted to a static image for “Bates Labeling” needs a date with a recycle bin.

First, Federal Rule of Civil Procedure Rule 1 states the following, in relevant part:

These rules govern the procedure in all civil actions and proceedings in the United States district courts… They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.

(As amended Dec. 29, 1948, eff. Oct. 20, 1949; Feb. 28, 1966, eff. July 1, 1966; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 30, 2007, eff. Dec. 1, 2007.)

Any interpretation of a “Discovery Handbook” that can increase the cost of litigation $16,000 to $75,000 clearly violates the first rule of the Federal Rules of Civil Procedure that cases be “administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”

Second, Federal Rule of Civil Procedure Rule 34(b)(2)(E) states, in relevant part:

(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.

Jannx Med. Sys. v. Methodist Hosps., Inc., 2010 U.S. Dist. LEXIS 122574, at *8 (N.D. Ind. Nov. 17, 2010).

The above interpretation of the “Discovery Handbook” stands directly opposed to Federal Rule of Civil Procedure Rule 34(b)(2)(E).

The issue of “Bates Labeling” electronically stored information is understandable given the decades of legal assistants stamping paper documents.  However, that dogmatic practice has come to an end with electronically stored information.  Data cannot be forced into a paper model of production that 1) drives up the cost of discovery and 2) violates the Federal Rules of Civil Procedure.  Just imagine converting an Excel file with multiple tabs and fields to a static image solely for the sake of branding a number on it.

The issue of “Bates Labeling” is solved with 1) Assigning records control numbers and 2) Producing MD5 or SHA5 hash numbers as production fields with metadata.  These digital fingerprints are the 21^st Century way to address these issues, not compounding the cost of discovery by converting searchable native files to static images for the sake of branding them with a number.

Parties should discuss at a meet and confer how ESI should be produced.  There is nothing that should stop parties from determining that “Bates Labeling” of ESI is producing a hash value, reported to the Court in a joint statement, which can be codified as a court order at a Federal Rule of Civil Procedure Rule 16(b) conference.

The future is now.  We should not limit discovery “Bates numbers” to paper productions of the 1950s with the technology available today.

Burning the Cost of Production & Review

Everyone got burned in this case, including the Court, the Federal Rules of Civil Procedure and especially Rule 1. Brinckerhoff v. Town of Paradise, 2010 U.S. Dist. LEXIS 126895 (E.D. Cal. Nov. 18, 2010).

On a positive note, the Court was innovative enough to cited Google Maps in a footnote on the distance between the attorneys in San Francisco and the Defendant town.  Brinckerhoff, at *8, fn 5.

Brinckerhoff is an employment discrimination case involving a firefighter and local government.  The opinion does not start on a good note, with the Court stating:

It must be noted that the parties made review of these motions very difficult for the undersigned in submitting more than one joint statement and failing to cooperate in drafting and submitting the joint statement. From failing to include a table of contents to submitting multiple copies of the same document with the order of contents switched around, to filing numerous extraneous pleadings, both parties have exhibited unprofessional conduct which is unacceptable. In future, the court will decline to hear any discovery matter where the Federal and Local Rules are not strictly followed.

Brinckerhoff at *2-3.

The discovery disputes in the case were numerous, including sufficiency of initial disclosures, who was protected by the attorney-client privilege and the lack of a privilege log. 

The electronic discovery issues focused on producing in native file format and requesting metadata.  Brinckerhoff, at *26-33. 

The Plaintiff sought the production of email messages in native file format, the search of two computers and that the Defendants pay for the searches.  Brinckerhoff, at *26-27.

The Defendants argued against native file production, because the Plaintiffs did not raise electronic discovery in the Rule 26(f) conference, or their discovery plan or request the email in native file format. Brinckerhoff, at *28-29.

The Court quickly rapped the Defendant on the knuckles, because they also had, “a responsibility to raise the issue at the discovery conference and affirmatively state that there will be no electronic discovery if it so wishes. The parties have a mutual obligation to discuss this issue at the discovery conference.”  Brinckerhoff, at *29. 

While it is without question parties need to discuss electronically stored information at a Rule 26(f) conference, it is highly problematic for a court to state parties at a meet and confer can agree “there will be no electronic discovery if [a party] so wishes.” 

Given the tone of the rest of the opinion, I believe the Court literally did not mean parties can wish away electronically stored information.

The Defendants argued that Aguilar v. Immigration and Customs Enforcement Div. of U.S. Dept. of Homeland Sec., 255 F.R.D. 350 (S.D.N.Y. 2008) stood for the proposition that electronically stored information cannot be compelled without a meeting between the parties.  Brinckerhoff, at *29. 

The Court expounded that Aguilar was not that simple, because the failure to attempt to resolve ESI disputes without court intervention (i.e., meet and confer), put the moving party in an “uphill battle” to compel ESI.  Brinckerhoff, at *29.  As the Court explained Aguilar:

In considering the moving party’s request for metadata, the court considered multiple factors, including plaintiffs’ delay in seeking the data in this format until after defendants had already produced it in PDF format, and the failure to discuss the metadata at the Rule 26(f) discovery conference. Id. at 352, 359. The court also contemplated the matter practically in terms of whether defendants’ retracing of their steps would yield useful information beyond what plaintiffs had already received, and how many emails had been produced to determine whether plaintiffs would have a difficult time reviewing and managing them. The conclusion was that defendants would not be required to re-produce the documents in a different format. Id. at 360.

Brinckerhoff, at *29-30.

The Court found that the failure to meet and confer over electronically stored information was not a shield to the Plaintiff’s discovery request.  Brinckerhoff, at *31. 

The Court ordered the Defendant to produce metadata for all of the Plaintiff’s performance evaluations and emails (presumably the parent and child messages and attachments), because the data would show when the evaluations were created and modified.  Brinckerhoff, at *31-32. 

The Defendants originally produced the email in the case as paper. 

The Court noted the Defendants claimed the paper was “only eight to twelve inches thick,” to which the Plaintiff countered it was 4,000 pages.  Brinckerhoff, at *31. 

As the Court stated, “In any event, plaintiff will not be hard pressed to review them in paper form. Plaintiff has not shown that any other production in electronic format would result in useful information, other than the missing and allegedly destroyed evaluation of plaintiff.”  Brinckerhoff, at *31.

The Court further denied the Plaintiff’s request to search the two Defendants’ computers, because “Plaintiff has not provided any specific information which would warrant such a search, especially in light of plaintiff’s failure to previously request electronic data.”  Brinckerhoff, at *32-33.

Bow Tie Thoughts

I think this opinion has some major problems.  Granted, from the opening, I could see how some of the decisions were reached.

First, a party cannot agree at a 26(f) conference “there will be no electronic discovery if it so wishes.”  Brinckerhoff, at *29.  That is sort of like saying, “I wish the lawsuit would go away.”  At best, parties would be willfully ignoring evidence if they started agreeing to ignore email and other electronically stored information.  At worst, willfully ignoring discovery would arguably be malpractice. 

Parties should discuss the preservation of electronically stored information, ways to collect the data in a defensible manner and how they wish to review it at a Rule 26(f) meeting.  This could simply mean parties are doing targeted collections or printing email messages as searchable PDF’s.  However, agreeing “there will be no electronic discovery” is simply not a reality. 

The second major issue is leaving electronically stored information converted to 8 to 12 inches of paper.  A party cannot degrade the searchable features of electronically stored information.  The Court in this case acknowledged this maxim in its discussion of the Rule 34 Advisory Committee notes. (see, Brinckerhoff, at *27-28). 

The conversion of ESI to paper runs afoul of not just Rule 34, but Rule 1.  Federal Rule of Civil Procedure Rule 1 states that the Federal Rules of Civil Procedure should “be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”  Converting email to paper certainly destroys any searchable features and drives up the cost to search what once was searchable in a litigation support database.  A simple test to prove this, time how long it takes to find the word “evaluation” in a litigation support database verse digging through 4,000 pieces of paper.  Once finished, explain the document review bill to the client.

Not All Productions Are Musicals

In a dispute over the creation of Jersey Boys, we see the production of electronically stored information is no musical. Corbello v. Devito, 2010 U.S. Dist. LEXIS 125207 (D. Nev. Nov. 12, 2010). 

For the opening act, the Court admonished the attorneys for “their lack of cooperation concerning Electronically Stored Information (“ESI”) and the exchange of ad hominem attacks…” Corbello, at *2.

The remaining acts in the opinion danced over the production of electronically stored information and other issues before the closing curtain. 

Working My Way Back to Native File Production

In one of the discovery disputes, the Plaintiff claimed the Defendants had not produced all the changes made to the script from the start of the project to the different stage productions.  Corbello, at *5.  The “New Defendants” admitted that another Defendant had unproduced versions of the script.  Corbello, at *6.

Both Defendants did produce hundreds of scripts and drafts in .pdf format.  Corbello, at *6.

The New Defendants also produced in hard copy a notebook of page changes.  Corbello, at *6.  The top of each page included the date the changes were made before the show opened.  Corbello, at *6.

The New Defendants also produced in .pdf format two comments made using the notes feature of Screenwriter, a software for writing scripts.  Corbello, at *6.

The Plaintiff sought the production of the Screenwriter files in native file format for possible imbedded metadata.  Corbello, at *7.  The Defendant objected to producing in native file format on the grounds the production would be burdensome and duplicative.  Corbello, at *6.

PDF’s Don’t Cry

The Court agreed with the Defendants. 

The Court held producing in .pdf format was a “reasonably usable format” that met their discovery obligations.  Corbello, at *7.

The Court noted that the parties did not agree to native file productions, other than the Plaintiffs preferred the native file format.  Corbello, at *7. Moreover, the Defendants argued they had already produced the information in a reasonably useable format.  Corbello, at *7.

As the Court held:

The New Defendants “need not produce the same electronically stored information in more than one form.” Fed.R.Civ.P. 34(b)(2)(E)(iii). The Court finds that to compel additional production of these materials in native format would be an unnecessary burden and an unjustifiable waste of time and resources. The Plaintiff’s request to produce these materials in native format is therefore DENIED.

Corbello, at *7.

Bow Tie Thoughts: Proportionality, Who Loves You? 

Courts must guard against productions going out of control.  If there had been some showing the imbedded metadata was somehow relevant, this case could have turned out the other way. 

Courts are applying principles of proportionality, even though they are not calling it proportionality.  While many times parties will not take their eyes off native file productions, in this case producing simply as PDF outweighed the cost of re-producing in native file format.