Form of Production Battles: TIFF vs MSG

Pick your battles is a truism in form of production disputes.


In Feist v. Paxfire, Inc., the Plaintiff alleged the Defendant made multiple discovery abuses, from producing email in .msg format and not as TIFF, to making an “intentionally burdensome production.” Feist v. Paxfire, Inc., 2015 U.S. Dist. LEXIS 145024 (S.D.N.Y. Oct. 26, 2015). These arguments failed.

The Plaintiffs requested ESI to be produced as TIFFs and argued that the Defendant did not properly object to the form of production. Feist, at *2. The Court held that the Plaintiff’s argument was meritless, because 1) there were email communicates between counsel regarding the form of production for email in .pst format; 2) the Court downplayed the difference between .pst and .msg format; and 3) that “msg format contains more metadata than TIFF format.” Feist, at *4. The Court further stated that there was “no evidence” that the .msg form imposed “considerable costs” for the Plaintiffs. Id.

It is worth noting that TIFFs are static images that contain no metadata at all. Any metadata would need to be produced in a load file. While it is wise to always review in a review application, I personally would prefer reviewing native files in a near-native view in a hosted application.

The dispute further included the Defendant’s 2012 production being shared to the Plaintiff in a Dropbox folder. An attorney for the Plaintiff deleted some of the information on Dropbox, resulting in the Defendants re-producing the deleted ESI with a supplemental production. Feist, at *5.

The Court held the Plaintiff responsible for the production of any duplicative ESI, citing an email from Plaintiff’s counsel stating, “that Plaintiff’s counsel was attempting to restore files unsuccessfully, and that she understood ‘you are sending us a hard drive with the materials, so we don’t need to worry about drop box [sic]…’” Feist, at *5-6.

Judge Ronald Ellis ended the opinion with these final words to the litigants: On balance, both Parties have caused unnecessary delay in discovery and have exhibited a lack of communication regarding document production. Feist, at *6.

Bow Tie Thoughts

Attorneys often get lost in the “fog of war” in eDiscovery disputes. There are times when bringing a motion to compel is the absolute right answer; there are times when it is the absolute wrong course of action.

Is it really worth fighting over producing ESI with redactions as TIFFS instead of PDFs? Most review applications give options for either format. If the requesting party wants one over the other, the fight is just not cost effective.

History has many examples of miscommunications resulting in disaster. Lawyers who want to fight on every issue run the risk of ignoring what the opposing party is saying, creating a situation that can end in expensive motion practice. In the end, this results with money and time being lost with nothing gained.

Be Specific If You Are Going to Attack the Form of Production

Oh, Rule 34. You are the code section that keeps giving.

Under Federal Rule of Civil Procedure Rule 34(b)(2)(E)(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.”

A Plaintiff brought a motion to compel the opposing party to organize and label their production to correspond to the categories in the Plaintiff’s Requests for Production. Things did not go well for the Plaintiff’s motion. Hall v. Habul, 2015 U.S. Dist. LEXIS 87545, *15-16 (M.D. La. July 6, 2015).


The Defendant’s production was Bates labeled, but the Plaintiff still took the position that the production did not comply with Rule 34(b)(2)(E)(i). Id. Unfortunately for the Plaintiff, there was no further explanation as to why the production did not comply with the Rules. The Court did not know if the production was of electronically stored information, scanned paper documents, or a blended production. Id. Moreover, the Plaintiff did not explain why they did not believe the production was in the usual course of business, which is one of the production options under Rule 34(b)(2)(E)(i). Hall, at *16. As such, the Court could not determine if Rule 34(b)(2)(E)(i) was violated. Hall, at *15.

The only assertion the Court had to work with was the Defense attorney stating the “documents” were produced in the usual course of business. Hall, at *16. There was nothing in the record to refute this statement, thus the Court concluded the Defendant complied with Rule 34(b)(2)(E)(i). Id.

Bow Tie Thoughts

If you are going to challenge a production, be sure to specifically state what is wrong with the production. This could be the request for production called for native file format and static PDF’s were produced instead. There are many ways a production could not comply with the Rules.

I know many attorneys who produce ESI in the “usual course of business,” thus do not believe in labeling their productions. I know a few who revel in this strategy, wanting to let the other side figure out what records correspond to each discovery request. These attorneys often view the opposing party as a zombie hoard to be destroyed without mercy.

Being a good anal-retentive Virgo, I have a different view of document review. I believe in setting up issue coding to correspond to the Requests for Production. If you really want to get organize, have the RFP’s correspond to your Causes of Action or Defense, so you know exactly what supports your arguments and responds to the opposing party. This is excellent for being able to quickly retrieve records for review in preparing discovery responses or motion practice.

Most review applications allow coding fields to be exported out as an Excel file or CSV. A producing party can comply with Rule 34(b)(2)(E)(i) by exporting fields in order of discovery requests for issue tagging (such as an RFP00001), followed by the Document Identifier, such as Bates, Docid, or Production Number, and relevant metadata, perhaps even the system file pathway to show how the origin of the record.

Parties are within their rights to simply produce discovery as it is maintained in the ordinary course of business. I prefer having them labeled, but that is both my preference and one option to specify under the Rules.


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).


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.