18 Missing Email Messages is not like 18 Minutes of Missing Watergate Tape

Rosemary Woods was not involved in this document production.

In motion practice over the adequacy of a production, the Plaintiffs were able to show that the Producing Party did not produce 18 email messages that were produced by a third-party.

As such, the Plaintiff sought production of search efficiency reports that was conducted as an audit and investigation by two law firms for the Producing Party. The goal was to identify the missing discovery from the production, opposed to the specifics of the Producing Party’s discovery efforts. Freedman v. Weatherford Int’l, 2014 U.S. Dist. LEXIS 133950, at *7-8 (S.D.N.Y.Sept. 12, 2014).

Judge Francis stated that “suggested remedy is not suited to the task,” because only three of the eighteen email messages would have been identified by the search terms used in the audit investigation. Freedman, at *8.

The Plaintiff’s argument focused on that the information produced by third-parties should have been produced by the Producing Party, opposed to whether the requested searches would have identified the missing information. Freedman, at *9. According to the Defendants, only one unproduced document would have been identified from the requested searches. Id.

The Producing Party had reviewed “millions of documents” and produced “hundreds of thousands” of documents that totaled nearly 4.4 million pages. Citing to the “proportionality rule” from the Federal Rules of Civil Procedure, the Court invoked the maxim the Rules “do not require perfection.” Freedman, at *9, citing Moore v. Publicis Groupe, 287 F.R.D. 182, 191 (S.D.N.Y. 2012).

The Court stated it was “unsurprising that some relevant documents may have fallen through the cracks;” however, the remedy sought would unlikely cure any production defects. As such, the Court denied the production of the search report. Freedman, at *9-10.

Bow Tie Thoughts

Judge Francis’ opinion puts very proportional view of challenging production adequacy: you first have to demonstrate a production is inadequate and then demonstrate the remedy makes sense. Proving three email messages were missing out of thousands does not justify conducting searches that would not produce any missing information. The remedy has to be proportional to problem.

Proportionality is a balancing of interests. Do 18 missing emails out of thousands justify new searches? Well, if those 18 emails were the key smoking gun messages, maybe. Ask Rosemary Woods or Lois Lerner about missing information.

The message I take away from Judge Francis’ opinion, is that if you have emails from a third-party that show a production deficiency, you have to offer a proportional remedy. If the offer is for additional searches that would only produce one or two of the missing emails, that is not a proportional remedy. Alternatively, if you proffer search terms that would have generated “hits” on 17 out of 18, maybe that would tip the scales in favor of running additional searches. At the end of the day, the effort sought has to have value to the case and not be an experiment in futility.

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

Here 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. 

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.