Form of Production Battles: TIFF vs MSG

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

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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.

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.

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.

Don’t Stipulate to Not Follow the Form of Production Rules

No-jackintheboxHere is my advice: NEVER agree to a stipulation to produce native files when “it is more practical to do so” and agree to productions in PAPER, PDF’s, or TIFFs. Melian Labs v. Triology LLC, 2014 U.S. Dist. LEXIS 124343 (N.D. Cal.Sept. 4, 2014).

That is what happened in Melian Labs v. Triology LLC. It reads like a personal Sum of All Fears for anyone who has spent years working with ESI, because the Court denied motions to compel email and spreadsheets in native files with metadata, because of the parties’ Rule 26(f) stipulation.

The Requesting Party challenged the Producing Party’s email production, because the production was “7 large PDF image documents, which each appear to be a  compilation of ESI improperly collected and produced” and the collection was not forensically sound.  Melian Labs, at *4.

The Producing Party claimed it did not need to forensically collect discovery. Further, the Producing Party claimed the email was printouts directly from Gmail or Microsoft. Id. 

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The Court stated that the Requesting Party was complaining about the form of production and not that the production was incomplete. As the parties had agreed to the form of production being paper, PDF’s, or TIFFs,  Fed. R. Civ. P. 34(b)(2)(E) did not control, but instead the parties’ stipulation. Melian Labs, at *4-5.

The Court stated the following on the stipulation and the discovery dispute:

Instead, it states that ESI may be produced in paper, PDF or TIFF. That producing the documents in a searchable format would ease Triology’s review does not render Melian’s production deficient. Triology fails to articulate why metadata is important to emails, when every email should contain the information sought on the face of the document. To the extent that emails have this information cut off or it is not apparent from the face of the email (i.e. as may be the case with BCC), Triology is entitled to the complete email with the agreed upon metadata, and Melian must provide it upon request.

Melian Labs, at *5 (Emphasis added).

Based on the above, the Court DENIED the moving party’s request  to compel the production of all emails in a searchable or native format is denied. Id. 

Things get equally frustrating for spreadsheets.

The Producing Party admitted reading some of the spreadsheets were difficult and produced those ones in native file upon request. Melian Labs, at *5-6. However, the Producing Party stood their ground that they agreed to produce native files “when it is more practicable to do so.” Id. 

The Court held again that the joint stipulation controlled and that the Producing Party could NOT be compelled to produce spreadsheets in native file format. Melian Labs, at *6 (emphasis added). However, the Court did end with a subtle suggestion the Producing Party would produce spreadsheets that were “easily readable without seeking court intervention” in the event of any disputes over the readability/legibility of spreadsheets. Id. 

Bow Tie Thoughts

I hate stipulations like this one. Producing in native file format is the only practical option when it comes to ESI. If I were a Federal Judge, I would summarily deny any such Rule 26(f) stipulations that called for the production of ESI as paper, PDFs, or TIFFs, on the grounds that the agreement would violate Federal Rule of Civil Procedure Rule 1 by unnecessarily driving up costs. The fact the parties end up shackled to a bad form of production agreement should serve as a warning label to never let this happen again.

I worked on a case where over 2000 documents were produced as 8 non-searchable PDF’s. To say it was a mess was an understatement. We were able to correct the production gamesmanship with a useable production, but it made document review very difficult until it was corrected.

There is value in native files, because it provides objective coding for databases and expedites review, both of which further the goals of Rule 1. Moreover, there is amazing review technology that empowers lawyers to identify communication patterns, key players, and other useful information. Printing Gmail as PDF’s dramatically undercuts that ability to make use of these tools.

That being said, the Requesting Party could have very forceful deposition questions on what was done to preserve ESI, the steps to identify responsive discovery, and what methodology was employed to ensure substantive and embedded metadata was not destroyed after the duty to preserve triggered. Additional questions could be asked to identify formulas in printed spreadsheets of Excel files. This might force the production of un-produced native file spreadsheets.

Discovery must be collected in a defensible manner. Many people call this process “forensically sound.” This might not mean that every computer has a mirror image made of it, but a targeted collection. Using targeted collection tools can also be done in a defensible manner, with many great technology options to use. That being said, I would question the adequacy of a product done where the collection process was printing email as PDF’s. It might be justified in a small case, but if in Federal Court with high stakes, I would strongly encourage having a mirror image done of the subject computers.

Native File for Cloud Email

A producing party claimed that it was “impossible” to produce Gmail in Native File Format because, “Gmail account user and Google does not permit its users to copy e-mails and documents in native format.” As such, the Defendant produced the gmail emails by forwarding them to the Plaintiff. Sexton v. Lecavalier, 2014 U.S. Dist. LEXIS 50787, 5-8 (S.D.N.Y. Apr. 11, 2014)

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The Plaintiff disagreed and countered the emails could be produced by either 1) downloading the messages to a program like Outlook or 2) Gmail e-mails that have been displayed [6] in their “original” format by clicking “show original” on the Gmail website and subsequently saved as PDF files. Sexton, at *6.

The Plaintiff’s declaration explained in detail methods for exporting email. Id.

The Court stated that even though producing “cloud” email might be difficult, that did not “absolve him of his obligation to produce documents in a reasonably useable format.” Sexton, at *6.

The Court proceeded to recount the value of metadata and production methods to prevent the degradation of valuable metadata. Sexton, at *7, citations omitted. The Court stated the following on the Defendant’s production obligations:

In the context of a request for native e-mails stored with a third-party provider, a functionally native format that preserves relevant metadata, such as those formats that can be generated through an e-mail client like Microsoft Outlook or through e-discovery collection software, should generally suffice.

Sexton, at *7-8.

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Bow Tie Thoughts

Attorneys have to get used to the reality that collecting cloud email will require the use of either a computer forensic expert. There are multiple ways to collect cloud email, with one method being to download the email to Outlook, followed by the email then being defensibly collected. Other applications can collect directly from the cloud. Regardless of the method used, the custodian should not do the collection. Self-collection often results in self-selection. Self-selection can end with relevant email not being produced.

 

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.

What is the Form of Production for a Database?

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Defendants in a discovery dispute produced data from a timekeeping database as PDF’s.

The Plaintiffs objected, arguing their expert would need to spend 300 to 500 hours converting the PDF’s into a database.

The Defendants countered that it would take a team of three to four people between three to four days to write a script to convert their timekeeping export to a report in a .CVS format, because the system natively exported PDF’s as its reporting feature. Castillon v. Corr. Corp. of Am., 2014 U.S. Dist. LEXIS 17950, 9-10 (D. Idaho Feb. 7, 2014).

So, what is the proper form of production of the data?

The Court explained that the Plaintiffs did not state the form of production in their request. As such, the Defendant had to produce the ESI as it is ordinarily maintained or in a reasonably useable form pursuant to Rule 34. The Court found that the Defendant had “sufficiently shown that any report or other extraction of data from the Kronos system is natively produced in a searchable .pdf format. Because Defendant has already produced the Kronos data in that format, it is not required to re-produce it in a different form.” Castillon, at *9-10.

The Court further stated that searchable PDF’s is a reasonably useable form that could be “easily searched.” Castillon, at *10.

Bow Tie Thoughts 

The Star Trek fan in me did not at all find it ironic that data from a timekeeping system named Kronos would end up in a discovery dispute, because it is after all the Klingon home world.

Geeks aside, it is very important to think about how you want to review data from a database when drafting a discovery request. What form will best help your expert? Has this issue been discussed at the meet & confer? Since a searchable database would likely  benefit both parties if discussed at the Rule 26(f) conference, would both parties be willing to split the cost of preparing a script?

These issues are best resolved prior to motion practice. Litigation often has surprises such as this one. Finding out the format of database exports is a very important topic to add to a Rule 26(f) conference if you expect a database to be at issue in a case.

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?

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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.