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.

Who Knew What When About the Form of Production

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

WhenDidYouKnowAboutNativeFiles

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

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

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

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

[T]he option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation. If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.

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

Driving the point home, the Court explained that a requesting party’s obligation to specify a format for production is superseded by a responding party’s obligation to refrain from converting “any of its electronically stored information to a different format that would make it more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

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

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

Bow Tie Thoughts

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

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

“We Don’t Want To” is Not an Objection

There is a strong trend in case law for 2013: Judges understand the form of production.

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Magistrate Judge Donna Martinez brought home this point in Saliga v. Chemtura Corp.

The Plaintiff requested ESI in native file format. The Defendant objected. However, the objection was not based on undue burden or proportionality, but that there was “no basis or need” to produce in native format. Moreover, the Defendant argued native file productions prevented Bates numbering or confidential markings in deposition or motion practice. Saliga v. Chemtura Corp., 2013 U.S. Dist. LEXIS 167019, 3-7 (D. Conn. Nov. 25, 2013).

The Court held: The rule says that the requesting party may specify the “form . . . in which [ESI] is to be produced,” Fed. R. Civ. P. 34(b)(1)(C), and the defendant has not shown compelling reasons why it cannot produce the information in the format requested by the plaintiff. Accordingly, the court will grant the plaintiff’s request for native format. Saliga, at *6.

Bow Tie Thoughts

Saliga v. Chemtura Corp. is an excellent discussion of the Federal Rules of Civil Procedure and accompanying case law on the form of production. Judge Martinez is thorough and to the point on the requesting party controls the form of production, subject to an objection from the producing party.

As I have argued before, fear about Bates numbering is not a valid objection. ESI should be maintained in databases with control numbers, Docids, or other ways to sort and organize data. Those who make litigation review software are very good at organizing and searching ESI. Static images reduces the available search features a party can use to analyze ESI.

It is important to understand the difference between reviewing ESI and using ESI at a deposition or in motion practice. Just because you will have a deposition does not mean ALL ESI should be converted to static images for a production. That only reduces the ability to use search technology and likely will drive up the time to conduct review.

Parties should agree on how ESI can be used in deposition or motion practice, whether it is projected natively, or converted to static images or even printed with the MD5 hash value in the footer and an exhibit number. There are several other options as well, but this is an excellent topic for the Rule 26(f) conference.

Objections cannot be hypothetical. If there is a native file that requires redaction of confidential information, specifically object on those grounds to the responsive discovery with the specific objection.

Excuse Me, PDF’s Instead of Native Files?

LeslieCrystal_Stressed_3193Westdale Recap Props. v. Np/I&G Wakefield Commons is a serious case of “no, that’s not right.”

It concludes with a Court telling a requesting party that requested ESI as native files that it had not “demonstrated an adequate need to have all the ESI produced in native format.”

So much for stating the form of production in your request.

Get ready to pull your hair, because the form of production in this one is a rough ride.

Lawyers Need to Pick the Right Fight

Parties often fight over ESI Protocols for two reasons: 1) There are legitimate issues about custodians to collect, the scope of discovery, search terms and how to address privilege; or 2) The lawyers simply enjoy fighting.

Option 1 is legitimate; Option 2 is not.

The parties in Westdale Recap Props. v. Np/I&G Wakefield Commons had competing protocols that they could never agree on. To their credit, they did agree on a protective order.  Westdale Recap Props. v. Np/I&G Wakefield Commons, 2013 U.S. Dist. LEXIS 138537 (E.D.N.C. Sept. 26, 2013).

The Production Dispute 

The Producing Party gave the same boilerplate objections to the Plaintiff’s 71 requests for production. This was one sentence asserting objections and another “stating subject to the various objections, relevant, nonprivileged documents would be produced.” Westdale Recap Props., at *5. The Producing Party had objections stated in 18 paragraphs, but did not specifically tailor any objections to the 71 production requests. Id. 

70 of the 71 requests for production stated “native file” as the form of production. Id. The Court summarized the Producing Party’s position as follows:

Centro did not address in its stock response the form of production of ESI. In its general objections, however, Centro objected to the extent that the requests seek the production of documents in any particular electronic format or seek ESI not reasonably accessible because of undue burden or cost, or in more than one form. Centro continued that any ESI would be produced in paper printout form or in electronic format as kept and maintained by Centro in the ordinary course of business.

Westdale Recap Props., at *5-6.

Nothing was produced at that time, including a privilege log. Id.

The Producing Party produced 500 pages of documents after the parties agreed on the protective order, followed by a supplemental production of 120 pages and another 24,000 pages after motion practice began. Westdale Recap Props., at *6-7.

Notice that the production is being referred to as “pages.”

Things Get a Little Weird 

The Court found, based on the parties’ ESI protocols, good cause for the Producing Party to conduct additional searches for ESI.  Westdale Recap Props., at *16.

The order is fairly standard, with the Plaintiff to provide custodians, dates and/or keyword search terms for the Producing Party to search. Westdale Recap Props., at *16-17.

The Plaintiffs wanted ESI in native file format with metadata and not PDF’s because this was a fraud case and metadata was critical. Westdale Recap Props., at *17.

LeslieCrystal_Seriously_3221

The Court held the following:

Plaintiffs’ contention that production of ESI in the form of searchable PDF files would destroy the associated metadata appears unfounded. While the PDF files would not necessarily contain the metadata, Centro represents that the metadata would remain intact and plaintiffs have not shown to the contrary.

The court also finds that plaintiffs have not, at this point, demonstrated an adequate need to have all the ESI produced in native format. Instead, as Centro argues, production in the form of searchable PDF’s is sufficient.  If after reviewing Centro’s production plaintiffs determine that they still seek production of particular ESI in native format, they may file an appropriate motion. See Rule 26(b)(2)(B).

Westdale Recap Props., at *18-19.

Bow Tie Thoughts

Telling a party to live with reviewing PDF’s is like telling someone to fuel their hybrid with coal. While it is clear the Producing Party did only boilerplate objections, it is not clear if the ESI had confidential material that required redaction, thus requiring conversion to PDF’s.

I think the Court was wrong in its decision on the form of production. It only invites more motion practice if not an outright appeal to the District Judge.

The text of Rule 34(b)(1)(C) is clear that the request “may specify the form or forms in which electronically stored information is to be produced.” The Rule does not require a party to demonstrate an adequate need to have all the ESI produced in native format.

The Rules further state the following for the producing party under Rule 34(b)(2)(D):

Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form—or if no form was specified in the request—the party must state the form or forms it intends to use.

(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.

It is not known how the Plaintiff tried explaining the value of native files, metadata or the need to analyze data in any modern review platform.

Taking native files and converting them to a static image will one 1) drive up processing costs and 2) reduce the ability to use analytical software on the data.

These points cannot be argued to a Court on principle, but judges need expert affidavits to explain why natives are needed.

The only thing worse than producing ESI as static images would be printing ESI as paper, which the Producing Party in this case did initially stated it wanted to do in its general objections (or in electronic format as kept and maintained in the ordinary course of business).

That being said, Rule 34 is clear that the requesting party can state the form of production in their request. They do not need to demonstrate any need for native files, especially if there was not been a specific objection on the form of production because of the need to redact confidential information.

I would encourage a party in this situation to have an expert document the reduced ability (or inability) to see communication patterns, email threading, clustering, predictive coding or any other forms of technology assisted review because of a static image production.

I would supplement the argument with the increased cost of discovery, from converting native files to static images, to increased time to conduct document review by having to look at each file “the old fashioned way” as violating Federal Rule of Civil Procedure Rule 1. This would need real numbers, perhaps evidenced by tracking one day worth of document review over 8 hours and the amount reviewed, compared to using native files in a review application. Show the cost savings vs the cost increase.

Courts want evidence. Provide it to the Judge so they can make an informed decision.

Failing to Show Undue Burden in Cost Shifting for Native File Production

In Sundown Energy, L.P. v. Haller, the Defendant (Requesting Party) brought a motion to compel the Producing Party to produce electronically stored information in native file format.  The Defendant had specified “native format” as the form of production in their request for production.  Sundown Energy, L.P. v. Haller, 2011 U.S. Dist. LEXIS 124145, at *9-10 (E.D. La. Oct. 26, 2011).

The Court granted the motion to compel.  The Producing Party requested the Defendants bear the production costs.  Sundown Energy, L.P. at *9.

The Court cited the following from Zubulake:

[W]hether production of documents is unduly burdensome or expensive turns primarily on whether it is kept in an accessible or inaccessible format (a distinction that corresponds closely to the expense of production)…Whether electronic data is accessible or inaccessible turns largely on the media on which it is stored.

Sundown Energy, L.P. at *9-10, citing Zubulake v. UBS Warburg, L.L.C., 217 F.R.D. 309, 318 (S.D.N.Y. 2003).

The Court quickly held the Producing Party failed to show the ESI was inaccessible, because their sole undue burden argument was the production would be “costly.”  Sundown Energy, L.P. at *10.  The Court stated there was no evidence of how the ESI was stored or how it was not reasonably accessible.  As such, the request for cost shifting was denied.  Id.

Bow Tie Thoughts

I have met attorneys who categorically state that e-Discovery is “expensive” and thus unduly burdensome.  This belief is often not substantiated with details of how a client’s data is maintained, types of files at issue, strategies for collection, how the data would be processed into a reasonably useable form, expected time for reviewing electronically stored information and costs for each step in production.  These are just a few of the possible elements to show undue burden and by no means a complete list.

Demonstrating ESI is not reasonably accessible requires at a minimum affidavits explaining the undue burden and the cost to translate not reasonably accessible ESI into a reasonably useable form.  A Court needs specific facts to make an undue burden determination, beyond a lawyer simply saying e-Discovery is “expensive.”

Producing Excel Spreadsheets as Tiffs

A Plaintiff produced Excel spreadsheets in TIFF format.  As one could expect, the Defendant brought a motion to compel in native file format faster than you can sort a column in ascending order.  Mitsui O.S.K. Lines, Ltd. v. Seamaster Logistics, Inc., 2011 U.S. Dist. LEXIS 117922 (N.D. Cal. Oct. 12, 2011).

The Court quickly held the Excel spreadsheets be produced in native file format.

Federal Rule of Civil Procedure Rule 34(b)(2)(E)(ii) requires that ESI created in an electronic format must be produced in “the form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Mitsui O.S.K. Lines, Ltd., at *1.

The Court sited the Advisory Committee’s Notes to the 2006 Federal Rules of Civil Procedure Amendments, which states:

The rule does not require a party to produce electronically stored information in the form it which it is ordinarily maintained, as long as it is produced in a reasonably usable form. But the option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation. If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.

Mitsui O.S.K. Lines, Ltd., at *1-2, citing Fed R. Civ. P. 34, Advisory Committee’s Note to the 2006 Amendment.

The Court further stated that form of production cases have held it is “improper to take an electronically searchable document and either destroy or degrade the document’s ability to be searched.”  Mitsui O.S.K. Lines, Ltd., at *2.

Based on the above, the Court required the production of the Excel files in native format, maintaining search capabilities, formulae, and other features, intact.  Mitsui O.S.K. Lines, Ltd., at *3.

Bow Tie Thoughts

Judge Facciola in Covad Communs. Co. v. Revonet, Inc., stated the following on producing Excel files as non-searchable tiffs:

Understandably, taking an electronic document such as a spreadsheet, printing it, cutting it up, and telling one’s opponent to paste it back together again, when the electronic document can be produced with a keystroke is madness in the world in which we live.

Covad Communs. Co. v. Revonet, Inc., 260 F.R.D. 5, 9 (D.D.C. 2009).

Parties can save time and money by producing Excel files as they are ordinarily maintained.  Taking a native file and converting it to a non-searchable file inherently drives up the production costs charged by a service provider.  Moreover, it drives up the cost to review the file, because the information is no longer searchable, requiring more time spent reading multiple TIFFs, instead of coded information in a review database.

Excel files, by their very nature of having formulas and other data, have information populated in multiple fields and on different tabs.  Converting these files to TIFFs causes an explosion of pagination, where a single file can turn into a several hundred-page TIFF.  This creates challenges in document review exactly as Judge Facciola described, where document review regresses to basket weavers putting shredded documents back together again.

A PDF Production is Not How a Native File is Ordinarily Maintained

In a production dispute over native files, Magistrate Judge Paul Cherry shows us (again) that producing native files as non-searchable PDF’s does not comply with Federal Rule of Civil Procedure Rule 34. Jannx Med. Sys. v. Methodist Hosps., Inc., 2010 U.S. Dist. LEXIS 122574 (N.D. Ind. Nov. 17, 2010). 

Federal Rule of Civil Procedure Rule 34(b)(2)(E) states:

 (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., at *8.

The Plaintiffs produced certain native files as PDF’s.  The Defendants argued that the files were normally maintained in a searchable form and the PDF production destroyed their ability to “effectively search or analyze the information.”  Jannx Med. Sys., at *9.  As the Court explained,

“Defendants are unable to determine which of the produced documents are associated with particular maintenance transactions, how the produced reports were generated, or even what data the reports rely upon.” 

Jannx Med. Sys., at *9-10. 

Plaintiffs’ Arguments for PDF Production

The Plaintiffs claimed that their PDF production complied with Rule 34, because the Defendant did not state a form of production.  Jannx Med. Sys., at *10.

The Plaintiffs argued that two cases, one before the 2006 Amendments to the Federal Rules of Civil Procedure, justified their PDF production.  Jannx Med. Sys., at *10.  The Court did agree there were times when a PDF production complied with the Federal Rules of Civil Procedure.

This was not one of them.  Jannx Med. Sys., at *10-11. 

The Court stated the Plaintiffs “ignored” the case law they cited, which discussed the Advisory Committee Note to the 2006 Amendments.  Jannx Med. Sys., at *11.  As the Court restated,

“[I]f the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.”

Jannx Med. Sys., at *11 (citation omitted). 

Don’t Make Productions More Difficult to Search

The Plaintiffs also argued that since the Defendant did not state a form of production, they were, in the words of the Court, “stuck with the form in which Plaintiff chose to produce the information.”  Jannx Med. Sys., at *11.

The Court again cited to the 2006 Advisory Committee Notes, stating,

“[T]he option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation.” 

Jannx Med. Sys., at *12, citing Fed. R. Civ. P. 34 Advisory Committee’s Note on the 2006 Amendments.

As the Court so aptly put: “It appears that this is exactly what Plaintiff has done in this case.”  Jannx Med. Sys., at *12.

The Court ordered the production of ESI “in an electronic database format that allows the information to be reasonably usable, i.e., fully searchable and manipulable, with the connections between data fields intact.”  Jannx Med. Sys., at *12.

Bow Tie Thoughts

Case law is riddled with discovery games of stripping searchable features from native files.  Such tactics drive up discovery costs because of wasted time in coding databases that should be populated with fielded data; unnecessary OCR costs of static images when ESI was already searchable; and associate attorneys spending the best years of their lives reviewing now non-searchable static images one file at a time, when they should be searching for what is relevant. 

Civil litigation unfortunately can be a blood sport.  Between the “gotcha” tactics and legitimate concerns for redacting confidential information, Courts will be dealing with cases like the above for years to come.