Producing as PDFs When Native Files Are Not in a Reasonably Useable Form

Not all native files are in a “reasonably useable form.” To borrow from the Dark Knight, sometimes, producing native files as PDF’s with metadata is the “reasonably useable” form you deserve, but not the one you need for convenient document review.

Search-DataA Plaintiff sought a native file production from a computer system that maintained medical files of prison inmates in a database application called “Centricity.” The Defendant produced the medical records as PDF’s in reverse chronological order and a motion to compel ensued. Peterson v. Matlock, 2014 U.S. Dist. LEXIS 152994, at *3-4(D.N.J.Oct. 29, 2014).

A requesting party can state the form of production in their request. A producing party must produce the information as it is “kept in the usual course of business or must organize and label them to correspond to the categories in the request.” Peterson, at *6, Fed. R. Civ. P. 34(b)(2)(E).

If a producing party objects to producing as native files (or any form of production), they have the burden of showing the “undue hardship or expense” prohibiting the production in the stated form. Peterson, at *7, citing Susquehanna Commercial Fin., Inc. v. Vascular Res., Inc., 2010 U.S. Dist. LEXIS 127125, at *13 (M.D. Pa. Dec. 1, 2010).

The Defendants explained that they had limited control on the export of the medical records, thus could not produce the information the way the Plaintiff requested in a piecemeal fashion or chart form. Peterson, at *5. Moreover, to produce the information in “chart format and organized into various categories as they are viewed through Centricity ‘would be an inordinate drain of time and manpower’ because staff from the DOC would be required to ‘sort through each page of the medical record and make the determination as to which category it fits into.’” Peterson, at *5-6.

The Court held that even though the PDF production was “less convenient” for the Requesting Party, “requiring staff from the DOC to sort and identify each page of every inmate medical record would create a substantial hardship and/or expense, which outweighs Plaintiff’s interests in receiving the records in their native format.” Peterson, at *7.

Bow Tie Thoughts

Document review and medical records can become complicated. I worked on a case where we as the plaintiff produced medical records to an insurance company in a personal injury case. We were given the Plaintiff’s medical records on easy-to-use interactive DVDs that had an impressive viewer where X-Rays were in 3D and could be rotated in any direction. It was extremely dynamic in analyzing the Plaintiff’s injuries.

The attorney at the insurance company did not want to use the DVDs and requested we produced everything as PDFs, thereby destroying the insurance company’s ability to review anything. The lawyer claimed the DVDs were “too complex” for him. Despite conferring directly with the IT support for the insurance company, we produced the information again as PDFs.

The case of Peterson v. Matlock is different, because here we have an export issue that does not match the stated format in the request. One option might be to give the Plaintiff access to a database with the information. Such access would likely NOT be proportional to the case given the cost to do so, but there are situations where this could happen.

The Court’s very short ruling is based on proportionality based on cost of producing the  information stated in the request against the value of the information to the Plaintiff. This case easily could have been decided as a form of production case, in that the native files were not in a reasonably useable form, thus required translation to PDFs. This might be the less conventional approach, but would be statutorily correct in my opinion.

Proportionality Prevents Mirror Imaging of Family Computers

The Defendants in employment litigation sought the mirror imaging of the Plaintiff’s personal computers three years after she had been terminated. The crux of the eDiscovery centered on the former employee forwarding emails from her supervisors email to her personal account, which the Defendants claimed were lost by the Plaintiff. The Court denied the motion to compel. Downs v. Va. Health Sys., 2014 U.S. Dist. LEXIS 74415, 6-11 (W.D. Va. June 2, 2014).

Young woman with a laptop on her head

Judge James G. Welsh did a very nice job of summarizing ESI relevant to a case, proportionality, and the rules for conducting forensic analysis on an opposing party’s hard drive. The Court held the following:

(1) Nothing in the record suggests any willful failure, fault or bad faith by the plaintiff on her discovery obligations that would justify the requested computer forensics examination;

(2) The “mirror-imaging” of the plaintiff’s family computers three years after her termination raises significant issues of confidentiality and privacy;

(3) There was no duty on the part of the plaintiff to preserve her family computers as evidence;

(4) Principles of proportionality direct that the requested discovery is not sufficiently important to warrant the potential burden or expense in this case; and

(5) On the current record that the defendants have failed to justify a broad, and frankly drastic, forensic computer examination of the plaintiff’s two family computers. 

Downs, at *9-10, referencing McCurdy Group v. Am. Biomedical Group, Inc., 9 Fed. Appx. 822, 831 (10th Cir, 2001); see also Basile Baumann Prost Cole & Assocs., Inc. v. BBP & Assocs. LLC, 2013 U.S. Dist. LEXIS 51264, *8 (DMd. Apr. 9, 2013).

Bow Tie Thoughts 

Conducting forensic analysis by an opposing party on personal computers is one of the most touchy subjects in eDiscovery. The United States Supreme Court drove home how much personal data can be on a smart phone, so that information only explodes on a personal computer. Tax records, vacation photos with children, and a host of other non-relevant or privileged information can be on a personal computer. The idea of a Court ordering the mirror imaging of personal computer by an opposing party is as invasive as ordering a physical examination of a party. It is not something done lightly.

I think it is part of a lawyer’s duty of competency to ensure relevant information on a client’s personal computers is preserved at the beginning of litigation. However, that does not mean that the entire contents would ever be produced, only what is relevant.

Targeted collections are one way to ensure ESI is preserved. There is also self-executing technology that can be used, as well as remote collections. I would avoid self-collection at all costs.

That being said, I would hold the line and fight against an opposing party that wanted to rummage through a personal hard drive without significant legal justification.

Stuck in the Predictive Coding Pipeline

ExxonMobil Pipeline had a problem in discovery: their discovery responses were overdue. The requests for production was served in November 2013 and due after one extension in January 2014. The Plaintiffs rightly brought a motion to compel.

The Defendants had enough discovery to give most eDiscovery attorneys a migraine with a nosebleed: 16 separate lawsuits, with 165 discovery requests in one case, a total of 392 requests in all the related cases, and 83 custodians with approximately 2.7 million electronic documents. Other discovery going back to 1988 had over 63,000 paper documents that were scanned and to be searched with keywords. Additionally, there were approximately 630,000-800,000 documents that had to be reviewed for responsiveness, confidentiality, and privilege. The Defendants had produced 53,253 documents consisting of over 191,994 pages. United States v. ExxonMobil Pipeline Co., 2014 U.S. Dist. LEXIS 81607, 5-8 (E.D. Ark. June 9, 2014).

pipeline

The Defendants suggested using predictive coding in light of the large volume of discovery, but the Plaintiff the United States did not agree with the use of predictive coding (at least since the filing of the motions). ExxonMobil Pipeline, at *6. Moreover, the parties did not seek relief from the Court on the use of predictive coding, other than to order the parties meet and confer. ExxonMobil Pipeline, at *6-7.

The Defendants explained that using traditional review with 50 attorneys that document review could be completed by the end of June 24 and production by the end of August 2014. ExxonMobil Pipeline, at *6.

The United States disagreed with the Defendants assumption of lawyers only reviewing 250 documents/files a day. Moreover, the Defendants did not raise concerns about document review when they entered an agreed upon scheduling order in October 2013. ExxonMobil Pipeline, at *6-7.

The Court acknowledged that the Defendants had a large volume of discovery to review. Moreover, it was unclear if the parties had agreed to a review methodology before the Court issued its order. Regardless, the Court ordered the Defendants to complete their review and production by July 10, 2014, absent good cause. ExxonMobil Pipeline, at *7-8.

Bow Tie Thoughts

Most attorneys do not think about document review strategies at the beginning of a case. They should. Discovery is the backbone of civil litigation. Unless you know the information you have to review, strategies to maximize efficiency, and reviewing for claims or defenses, document review can be a nightmare experience.

This case does not go into why the Defendants sought agreement from the Plaintiff on the use of predictive coding. I do not agree with that strategy, unless a specific review protocol was ordered at the Rule 16 conference that the producing party wanted to change.

The issue with a document production is whether or not the production is adequate. Lawyers should agree to the subject matter of the case, custodians, data ranges, and other objective information that goes to the merits of the lawsuit. When lawyers start asking each other for permission on whether they can use predictive coding, visual analytics, clustering, email threading, or any other technology, civil litigation becomes uncivil. Case in point: the Plaintiffs argued the Defendants could review more than 250 documents a day in this case. Such disputes turn into an academic fight over how much lawyers can read and analyze in a 9-hour workday. The end result of such motion practice would be a Judge ordering lawyers to read faster.

My advice is to focus on the merits and not derail the case with a fight over what review technology can be used. Fight over whether the production is adequate, not what whether you can use predictive coding.

Don’t Forget to Produce Email Attachments

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A defendant law firm in a fee dispute were ordered to produce specific email communications. The law firm produced email messages in PDF format without attachments. The Defendants claimed in a meet and confer they could not produce attachments from the server, but did not explain why. Skepnek v. Roper & Twardowsky, LLC, 2014 U.S. Dist. LEXIS 11894, at *3-4 (D. Kan. Jan. 27, 2014)

LeslieCrystal_Really_EmailIt is never good to have a Judge state, “It is unclear why defendants claim that it is impossible to include every attachment to the produced e-mails but somehow, they are able to produce specific attachments upon request.” Skepnek, at *4.

The Defendants attempted to make the case about the Plaintiffs not stating the form of production in their request.

The Judge did not take the bait and focused on the real issue in the case: the failure to produce the responsive files. Skepnek, at *6.

The Court ordered the production of the attachments, explaining its order as follows:

Defendants offer no excuse for their failure to produce responsive documents except that plaintiffs never requested the documents in native format. Plaintiffs simply want the documents that the court ordered defendants to produce, regardless of format. Because plaintiffs failed to specify a form for producing the electronically stored e-mails and attachments, defendants were required under Rule 34(b)(2)(E)(ii) either to produce the e-mails and attachments in the form (1) in which they are ordinarily maintained, or (2) “in a reasonably usable form.” Defendants failed to produce the attachments at all. Defendants also failed to show PDF format is the form in which their e-mails and attachments are ordinarily maintained.

Skepnek, at *6.

Bow Tie Thoughts

Lawyers often get into trouble with the production of electronically stored information because they do not retain anyone to handle the collection, processing or production of data. Many think their client’s IT staff can somehow “just do it” and avoid the cost of hiring a service provider.

Problem with that logic: You’re doing it wrong.

That is a lot like thinking an auto mechanic charges too much for a break job, so just have your 10 year old do it instead. Since the kid made a great Pinewood Derby car, he should be able to fix the Audi. What could possibly go wrong?

The duty of competency requires lawyers to hire experts to solve technical issues. The collection of ESI and processing are two such areas. Moreover, the technology is constantly advancing. I have watched very impressive product demonstrations of many software applications. Producing email with attachments is something service providers have been doing for over a decade. There are even YouTube videos showing how the technology works. There really is not an excuse from a technological perspective on why email was not produced with attachments in native file format.

Proving the Negative in Discovery Productions

confusedA requesting party has a very difficult problem when a producing party has made a very small production that the requesting party believes is deficient.

This situation quickly turns into the requesting party trying to prove a negative to the Court that a production is inadequate, without any evidence to support the argument.

However, just because a requesting party cannot prove a production is inadequate, does not mean the production is adequate.

A Court was faced with this issue in Am. Home Assur. Co. v. Greater Omaha Packing Co. The requesting party argued that the production of only 25 email messages in a case where discovery started in July 2012 was inadequate. However, the Court stated it “cannot compel the production of information that does not exist.” Am. Home Assur. Co. v. Greater Omaha Packing Co., 2013 U.S. Dist. LEXIS 129638, at *17  (D. Neb. Sept. 11, 2013).

The Court ordered the following as a solution:

Discovery on this matter has been ongoing since July of 2012. It is unclear to the Court why ESI that has presumably been in GOPAC’s possession since the start of discovery has not been fully produced. To provide Cargill an adequate opportunity to contest discovery of ESI, the Court will order GOPAC to disclose the sources it has searched or intends to search and, for each source, the search terms used. The Court will also order all ESI based on the current search terms be produced by November 1, 2013. However, given Cargill’s failure to point to any specific information that has been withheld or additional sources that have not been searched, no further action by the Court is appropriate at this time.

Am. Home Assur. Co., at *17-18.

Bow Tie Thoughts

This is a hard issue for any Judge and requesting party. I believe the Court reached the best solution with what was known by the Court and parties.  Moreover, the Court knew when to stop with its order.

Will a small production always result in a producing party being compelled to disclosed what it searched, what it intends to search and search terms? Most likely no, but it is a good alternative to forcing a requesting party to prove a negative.

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.