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.

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Why Deviate from Native Files in a Case Management Order?

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

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

Technology Assisted Review is Good for You and Me

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

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

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

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

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

The Form of Production

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

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

Green, 4-7.

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

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

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

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

Spreadsheets in Native File Format

The order stated the following on spreadsheets:

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

Green, at *8-9.

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

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

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.

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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.

“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.

ThinkingAboutBates_2902

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.

Plain Spoken Form of Production

My grandfather grew up a plain spoken farmer in Iowa. He had a bow tie wearing attorney uncle who also knew how to sum up an issue.

It is very nice to see a clearly stated order on the form of production from the Northern District of Iowa, Eastern Division that continues the tradition of telling it like it is.

Courthouse-1

Magistrate Judge Ross Walters concisely summarized the form of production:

Federal Rule of Civil Procedure 34(b)(2)(E) requires that a party must produce electronically stored information (“ESI”) “in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms . . . .” Similarly the Advisory Committee Note to the 2006 rules amendment (“Advisory Committee Note”) explains that if the form of production has not been specified by agreement or court order “the responding party must produce electronically stored information either in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably useable.”

Readlyn Tel. Co. v. Qwest Communs. Corp., 2013 U.S. Dist. LEXIS 45168, 2-3 (N.D. Iowa Mar. 29, 2013).

The producing party stated it had produced the ESI in a reasonably useable form. The Court saw no reason not to believe them and held that the producing party did not have to re-produce ESI already produced as native files or in a read-only but searchable format. Readlyn, at *3.

There was a big “however”: If there was any discovery that had to be produced subject to the motion to compel, the Court required the ESI to be produced in native format or read-only but searchable format.” Id. The Court stated:

Specifically, if Readlyn ordinarily maintains additional information subject to production by this ruling “in a way that makes it searchable by electronic means,” care shall be taken that the form of production will not “remove[] or significantly degrade[]” the searchable feature. Advisory Committee Note.

Readlyn, at *3.

Bow Tie Thoughts

BowTieGrandUncle1935I am not the first bow tie wearing lawyer in my family.

This is the first court order I have seen that used the phrase “read-only but searchable format.” There are many opinions stating “searchable format,” but this is the only one I have seen with that exact language. I believe this is a more accurate statement of the law regarding productions, because the use of “static images” or “TIFF’s” or “PDF’s” can result in “read-only” productions that are not searchable.

Judge Walters’ use of the phrase “read-only but searchable format” ensured compliance with the language of the Federal Rules of Civil Procedure and Advisory Notes that prohibits degrading searchable features of electronically stored information in discovery. I hope others follow Judge Ross Walters’ lead in other discovery orders on the form of production.

What options are there for producing “read-only but searchable format”? The traditional options are 1) TIFF with extracted text/metadata and 2) Searchable PDF with extracted text/metadata. Parties not using a review platform can conduct basic word searches in a searchable PDF or the text file accompanying a TIFF production. Parties using a review platform can get the benefit of effectively having “free document review” because all the objective information is readily searchable by name, date and other basic information from the face of the document.

Please Don’t Bates Stamp eDiscovery

Silly ClownThis case is my eDiscovery nightmare.

Worse than a clown with snakes.

Let’s review what happened.

The case involved numerous allegations of discovery wrongdoing against the Plaintiff.

The Defendants brought a motion for “discovery abuses intended to harass defendants, cause unnecessary delay, and needlessly increase the cost of litigation.”

The Defendants claimed they had spent $51,122 in legal fees and expenses related to the Plaintiffs’ “document dump.”

The motion was granted and denied in part. Branhaven, LLC v. Beeftek, Inc., 2013 U.S. Dist. LEXIS 13364, 13-14, 22 (D. Md. Jan. 4, 2013).

It Started Like Any Other eDiscovery Dispute…

The litigation had the “traditional” eDiscovery dispute with the Plaintiffs not producing email ESI, because they had not accessed the information, and other significant production delays. As the rather hot bench explained:

Plaintiff’s delay in addressing the lack of access to these email servers is inexcusable. There is no more obvious and critical source of information in the 21st century than a company’s email accounts.  Plaintiff’s counsel’s failure to identify and produce this discovery in a timely fashion and in an acceptable form and manner while suggesting — if not misleading defendants — that it had identified responsive documents is sanctionable.

Branhaven, at *13-14.

Things continued to be problematic for the Plaintiffs, who claimed ESI from laptops would be produced in what the Court described as “blithely” assertions that discovery would be produced “at a mutually convenient time.” In reality, the subject laptops had not been sent to the client (presumedly to for review, raising the issue why hadn’t the hard drives been imaged), until a new associate attorney found them. Branhaven, at *14. Their conduct ultimately resulted in sanctions in the form of fees and costs.

…and then Came the PDFs and Whether the ESI Should Have Been Produced as TIFFs with Bates Numbers to be in a Reasonably Useable Form

BatesNumberingThe Plaintiffs produced their ESI as PDF’s. The Defendants challenged the production, because the production was untimely and not in TIFF format with Bates Numbers on every page. Branhaven, at *14-15.

The nightmare of a TIFF over a PDF production with Bates Stamps included the Plaintiffs arguing that the discovery request did not request Bates Stamps; nor is it an express requirement in the Federal Rules of Civil Procedure, case law or the local discovery guidelines. Branhaven, at *16.

Moreover, the Protocol for Discovery of Electronically Stored Information (Local Rules of District of Maryland) which states that TIFF is the preferred format is only advisory. The Court called this a “weak defense.” Id.

The Court stated the following on the production:

Moreover, as defendants point out, Fed. R. Civ. P. 34(b)(2)(E)(ii) provides two options regarding the form in which a party may produce documents and plaintiff did not satisfy either. The July 20 production was not in a form “in which it is ordinarily maintained” or in “a reasonably usable form” — as Mr. McNeil showed (especially considering the lateness of the production with depositions looming in a few days). The Advisory Committee Notes to Rule 34 warn that: “[a] party that responds to a discovery request by simply producing electronically stored information in a form of its choice, without identifying that form in advance of the production in the response required by Rule 34(b) runs the risk that the requesting party can show that the produced form is not reasonably usable . . .” (emphasis added). That is precisely what happened here. Branhaven did not advise of the intended form of its production in its March response. Defendant was blindsided by the volume of the documents (since the prior productions consisted of 388 pages). Moreover, defendants had every reason to think that the documents would be completely Bates-stamped, as prior productions were and further defendants had no reason to think that this production would be so incredibly voluminous, as to require special arrangements and explicit agreement.

Branhaven, at *16-17.

The crux of production issue was whether or not the PDF’s were in a reasonably useable form. The Court held they were not, because of the lack of Bates Numbers and the fact they were not in TIFF format. Branhaven, at *17. Additionally, because of the production, the Court awarded the Defendants “the reasonable litigation support costs involved in receiving and processing” the document production. Branhaven, at *19.

Bow Tie Thoughts

Why is this a case a nightmare for me? Because it applies a paper model of discovery to electronically stored information, requiring a conversion of ESI into a TIFF with Bates Stamps (a conversion which can triple processing costs with some service providers). What is even stranger about it is the form of production battle centered on PDFs vs TIFF, both of which are static images. One difference is a PDF can be either non-searchable (thus like a TIFF) or searchable (thus more like a native file).

Demanding electronically stored information be converted to a static image with Bates Numbers is right up there with demanding MP3s be reversed burned to 8 Track. A party should have a good reason to take a native file, that is fully searchable and strip its searchable features. This truly makes it like a piece of paper, rendering the review tools that can do everything from sorting data in chronological order to technology assisted review be useless. It is like trying to fuel a hybrid car with coal.

Removing ESI’s searchable features also violate the Federal Rules of Civil Procedure and a substantial body of case law.

Moreover, claiming there is a functional difference between PDF vs TIFF as static images is like fighting over VHS vs Beta. The problem with such fights is we are in the 21st Century and not the 1970s. It is almost like arguing Beta is better than Video on Demand, because the issue is not the form, but whether you can analyze the content.

What drives these all too frequent fights? It is attorneys who want pieces of paper to have Bates Stamps. This worked up until the 1990s, but we now live in a world where the content on a smartphone can fill the first floor of a library. Data needs to be reviewed as data for there to be any chance to meaningfully understand its content. Moreover, as to the Bates Numbering to organize the ESI issue, native files can have a “control number” that is the functional equivalent of a Bates Number for management in a review platform. If there is still a concern about whether a file has been changed, parties can use MD5 hash values instead, to ensure the ESI has not been modified.

Finally, I believe forward thinking local rules are extremely helpful for litigants. However, as technology changes, these rules need to be updated to incorporate how computer-assisted review can cut costs, advances in processing or even the cost-effectiveness of remote depositions. What was forward thinking in 2006 can be outdated in 2013.

In the end, converting standard ESI like email to TIFFs to brand Bates Numbers should give lawyers nightmares of high processing costs, slow manual review and unhappy clients. It should only be done when the native file itself is not in a reasonably useable form, thus the static image is the only reasonably useable form.

No Expert Testimony, No Motion to Compel

A court should be hesitant to resolve issues that demand technical expertise.

Magistrate Judge James C Francis IV

In a case with dueling motions to compel, the parties disputed the adequacy of search terms. Magistrate Judge James C Francis IV wrote a profoundly important warning to attorneys and judges on search terms: A court should be hesitant to resolve issues that demand technical expertise. Assured Guar. Mun. Corp. v. UBS Real Estate Sec. Inc., 2012 U.S. Dist. LEXIS 167981, at *11 (S.D.N.Y. Nov. 21, 2012).

VintageComputerGeek

Neither of the parties submitted to the Court expert affidavits on the adequacy of the search terms. Judge Francis stated that expert testimony was “necessary for [him] to offer an opinion as to the most efficient, search protocol.” Assured Guar. Mun. Corp., at *12.

The Court noted that search term adequacy “is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics. Assured Guar. Mun. Corp., at *11-12, citing George L. Paul & Jason R. Baron, “Information Inflation: Can the Legal System Adapt?”, 13 Rich. J.L. & Tech. 10 (2007).

The Court also cited to the archangel of search term cases to highlight the difficulty in analyzing search term efficiency:

…for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread.

Assured Guar. Mun. Corp., at *12, citing United States v. O’Keefe, 537 F. Supp. 2d 14, 24 (D.D.C. 2008).

The Court stated the parties had three options:

They can cooperate (along with their technical consultants) and attempt to agree on an appropriate set of search criteria;

They can refile a motion to compel, supported by expert testimony; Or,

They can request the appointment of a neutral consultant who will design a search strategy.

Assured Guar. Mun. Corp., at *12.

Bow Tie Thoughts

eDiscovery requires expert knowledge. It is extremely dangerous for courts and parties to engage in determining search terms without having at least one expert who understands what technology to apply to a case to help attorneys make the legal determination what is relevant; identify what is responsive to discovery requests; and determine what ESI is privileged.

There have been too many eDiscovery opinions this year that most likely did not have an eDiscovery consultant assisting either party. I am greatly concerned the recent case management orders that limited parties to five search terms per custodian was purely an arbitrary number and lacked any expert involvement in analyzing the data before any such motion practice.

This is as dangerous as an accountant telling a doctor what procedures they can use to treat an emergency room patient before any triage takes place. The accountant is in no position to know what is best for patient care.

If determining search terms efficiency is the work of angels, limiting search terms without consulting an expert is embracing the dark ages at best and malpractice at worse. Why risk limiting your ability to find what is relevant to your case? Why risk driving up discovery costs by making searching for ESI harder?

Conversely, would any attorney agree to limiting their legal research to the arbitrary number of 3 terms and prohibiting the consultation of a research attorney to “lower costs”? Most likely no.

The answer to controlling eDiscovery costs is not limiting the tools to find what is responsive, but the education of attorneys and judges in understanding how to conduct eDiscovery. Highlighting the need for eDiscovery education, one recent opinion had a judge hold that TIFF’s are a form of production “that is easily searchable for specific terms.” Johnson v. Allstate Ins. Co., 2012 U.S. Dist. LEXIS 148282 (S.D. Ill. Oct. 16, 2012).

Tagged Image File Format is not searchable. Parties convert ESI to TIFF’s (usually at any additional processing cost) to make the native files not searchable. A production with TIFF’s would require extracted text, substantive and/or embedded metadata, or the TIFF’s to have optical character recognition (OCR) to be in a reasonably useable form without searchable features denigrated. Saying TIFF’s are searchable is simply wrong.

Judge Francis was profoundly correct when he stated, “A court should be hesitant to resolve issues that demand technical expertise.” eDiscovery requires attorneys being competent to understand their client’s ESI, which should involve having enough education on eDiscovery to know when to bring in an expert for help; determining whether or not search terms are effective requires such expert assistance.