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Could Senate Pose Roadblock to Federal Rules Changes? – eDiscovery Trends

As reported by Todd Luger in Law Technology News (Discovery Rules Changes Greeted With Skepticism in Senate), a congressional hearing opened with at least one senator voicing concerns about whether the changes would be effective at curbing the skyrocketing costs of discovery.

Changes to Federal Rules have been drafted and have been approved for public comment.  But, as the author notes, Congress ultimately will review any changes before they go into effect near the end of 2015.

U.S. Sen. Christopher Coons (D-Del.), who chairs the Subcommittee on Bankruptcy and the Courts, called the congressional hearing and “predicted that some proposed restrictions – such as reducing the number of depositions, interrogatories and requests for admission for each case – would do nothing about the high-stakes, highly complex or highly contentious cases in which discovery costs are a problem.”

However, Senator Coons expressed concerns that “those limits would likely restrict plaintiffs in smaller cases in which discovery costs are not a problem…especially in employment, discrimination and consumer fraud cases, when most relevant evidence is in the possession of the defendant.”

As the author notes, Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund Inc., “voiced those same concerns”, offering her own criticism.  “This is opening up a door to yet more time-consuming and expensive motions practice as we argue over what is proportional to the case,” she said.

Sounds like the battle to approve the rules changes has just begun.

So, what do you think?  Do they have a point?  Will the new rules changes penalize plaintiffs in smaller cases?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Judge Grimm Shows that Discovery Doesn’t Have to Be…Grim – eDiscovery Best Practices

On the day this blog debuted, we covered one of the most well-known cases related to discovery abuses (Victor Stanley, Inc. v. Creative Pipe, Inc.), where Maryland District Judge Paul W. Grimm included in his order a provision that the defendant actually be “imprisoned for a period not to exceed two years” if he didn’t pay the plaintiff the attorney’s fees and costs to be awarded.  Now, Judge Grimm provides a new Discovery Order that sets requirements for attorneys in his court to conduct discovery in a proportional manner.

In Ralph Losey’s e-Discovery Team® blog, he provides a two part discussion of Judge Grimm’s new discovery order (Judge Grimm’s New Discovery Order Is Now An e-Discovery Best Practice, Part One and Part Two).  The posts are well worth reading for several reasons, including to see how many ways the Electronic Discovery Best Practices (EDBP.com) model can be displayed (here’s our coverage of it when it was introduced last year).  As Ralph notes:

“First, it is important to note that Judge Grimm’s Discovery Order is an actual Order that he enters at the beginning of many cases. It is not a recommendation, guideline, or suggested protocol. The Maryland District Court’s Suggested Protocol for Discovery of Electronically Stored Information is a separate document that remains in effect. If you do not follow a Suggested Protocol, you may get a grim scowl and a tsk-tsk. If you do not follow an Order, you may go to jail. Just ask Victor Stanley.”

It was technically Mark Pappas of Creative Pipe who was threatened with imprisonment, but let’s not quibble… 😉

Anyway, as Ralph notes, the essence of the order is proportionality, with several phase one limits for proportionality (absent order of the Court upon a showing of good cause or stipulation by the parties), including:

  • RFPs are limited to 15 in number;
  • No more than 10 custodians can be searched;
  • ESI more than 5 years old is excluded;
  • Discovery is limited to reasonably accessible sources;
  • No more than 160 hours shall be expended for search and review services, including identifying potentially responsive ESI, collecting and searching that ESI (by any search method including properly validated keywords, Boolean searches and computer-assisted review), and reviewing that ESI for responsiveness, confidentiality, and for privilege or work product protection.

Both the producing and receiving parties have responsibilities, as follows:

“The producing party must be able to demonstrate that the search was effectively designed and efficiently conducted…[and] must maintain detailed time records to demonstrate what was done and the time spent doing it, for review by an adversary and the Court, if requested… Parties requesting ESI discovery and parties responding to such requests are expected to cooperate in the development of search methodology and criteria to achieve proportionality in ESI discovery, including appropriate use of computer-assisted search methodology.”

That isn’t just a set of guidelines, that’s an order!

A copy of Judge Grimm’s new Discovery Order can be found on a link in each of Ralph’s two posts above as well as on Ralph’s site here.

So, what do you think?  What do you think of the order?  Should orders like this be common in other courts?   Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

September/October Pop Quiz Answers! – eDiscovery Trends

Yesterday, we gave you a pop quiz for the topics we’ve covered in September and October.  If you’re reading the blog each day, these questions should be easy!  Let’s see how you did.  Here are the answers.

 

1. In which case was a key email deleted by the defendant, yet the plaintiff’s motion for sanctions was denied?:

 

A.    Logtale, Ltd. v. IKOR, Inc.
B.    Hixson v. City of Las Vegas
C.    American Home Assurance Co. v. Greater Omaha Packing Co.
D.    NOLA Spice Designs, LLC v. Haydel Enters., Inc.

 

2. Which of the following is NOT a component of a SWOT analysis?:

 

A.    Strengths
B.    Weaknesses
C.    Oversight
D.    Threats

 

3. What was the blended contract attorney hourly rate that the plaintiff’s lead attorney firm requested in the case In re Citigroup Inc. Securities Litigation?:

 

A.    $50
B.    $100
C.    $166
D.    $466

 

4. In which areas can a decision tree help determine the correct decision to address a discovery issue?:

 

A.    Decide whether to outsource litigation support and discovery activities or keep them in-house
B.    Determine whether to agree to produce native files or converted TIFF or PDF images to opposing counsel
C.    Neither of the Above
D.    Both of the Above

 

5. In which case did the judge rule that the defendant’s request for the plaintiff’s computer passwords and user names was “overly broad” “which far exceeds…proportionality limits”?:

 

A.    Logtale, Ltd. v. IKOR, Inc.
B.    Hixson v. City of Las Vegas
C.    American Home Assurance Co. v. Greater Omaha Packing Co.
D.    NOLA Spice Designs, LLC v. Haydel Enters., Inc.

 

6. When thinking about a successful outcome at the beginning of your case, which EDRM phase might you want to start thinking about first?:

 

A.    Presentation
B.    Preservation
C.    Processing
D.    Production

 

7. In which case did the court deny the plaintiff’s request for sanctions despite the disappearance of one hard drive and “scrambling” of another hard drive?:

 

A.    Net-Com Services, Inc. v. Eupen Cable USA, Inc.
B.    Anderson v. Sullivan
C.    Ancora Technologies, Inc. v. Apple, Inc.
D.    MediaTek, Inc. v. Freescale Semiconductor, Inc.

 

8. Based on Winston & Strawn’s interactive map, which state has not undertaken eDiscovery rulemaking activity to date?:

 

A.    Alabama
B.    Georgia
C.    Louisiana
D.    Mississippi

 

9. What percent of corporate legal departments have outsourced legal work at some point?:

 

A.    34 percent
B.    44 percent
C.    54 percent
D.    64 percent

 

10. As of October 24, how much data had been created this year in the Digital Universe?:

 

A.    3,025,049 petabytes (PB)
B.    2,954 exabytes (EB)
C.    2.88 zettabytes (ZB)
D.    All of the above

 

How did you do?  Next month, you’ll get another chance with November topics.  As always, please let us know if you have questions or comments, or if there are specific topics you’d like to see covered.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

 

September/October Pop Quiz! – eDiscovery Trends

We neglected to give you a pop quiz last month?  Oops!  Like we did for July and August (answers for July and August here and here), here is a pop quiz for the topics we covered in September and October.  If you’re reading the blog each day, these questions should be easy, but, yes, we still provide a link to the post with the answer if you need it.  Test your knowledge!  Tomorrow, we’ll post the answers for those who don’t know and didn’t look them up.

 

1. In which case was a key email deleted by the defendant, yet the plaintiff’s motion for sanctions was denied?:

 

A.    Logtale, Ltd. v. IKOR, Inc.
B.    Hixson v. City of Las Vegas
C.    American Home Assurance Co. v. Greater Omaha Packing Co.
D.    NOLA Spice Designs, LLC v. Haydel Enters., Inc.

 

2. Which of the following is NOT a component of a SWOT analysis?:

 

A.    Strengths
B.    Weaknesses
C.    Oversight
D.    Threats

 

3. What was the blended contract attorney hourly rate that the plaintiff’s lead attorney firm requested in the case In re Citigroup Inc. Securities Litigation?:

 

A.    $50
B.    $100
C.    $166
D.    $466

 

4. In which areas can a decision tree help determine the correct decision to address a discovery issue?:

 

A.    Decide whether to outsource litigation support and discovery activities or keep them in-house
B.    Determine whether to agree to produce native files or converted TIFF or PDF images to opposing counsel
C.    Neither of the Above
D.    Both of the Above

 

5. In which case did the judge rule that the defendant’s request for the plaintiff’s computer passwords and user names was “overly broad” “which far exceeds…proportionality limits”?:

 

A.    Logtale, Ltd. v. IKOR, Inc.
B.    Hixson v. City of Las Vegas
C.    American Home Assurance Co. v. Greater Omaha Packing Co.
D.    NOLA Spice Designs, LLC v. Haydel Enters., Inc.

 

6. When thinking about a successful outcome at the beginning of your case, which EDRM phase might you want to start thinking about first?:

 

A.    Presentation
B.    Preservation
C.    Processing
D.    Production

 

7. In which case did the court deny the plaintiff’s request for sanctions despite the disappearance of one hard drive and “scrambling” of another hard drive?:

 

A.    Net-Com Services, Inc. v. Eupen Cable USA, Inc.
B.    Anderson v. Sullivan
C.    Ancora Technologies, Inc. v. Apple, Inc.
D.    MediaTek, Inc. v. Freescale Semiconductor, Inc.

 

8. Based on Winston & Strawn’s interactive map, which state has not undertaken eDiscovery rulemaking activity to date?:

 

A.    Alabama
B.    Georgia
C.    Louisiana
D.    Mississippi

 

9. What percent of corporate legal departments have outsourced legal work at some point?:

 

A.    34 percent
B.    44 percent
C.    54 percent
D.    64 percent

 

10. As of October 24, how much data had been created this year in the Digital Universe?:

 

A.    3,025,049 petabytes (PB)
B.    2,954 exabytes (EB)
C.    2.88 zettabytes (ZB)
D.    All of the above

 

As always, please let us know if you have questions or comments, or if there are specific topics you’d like to see covered.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

 

EDRM Publishes Collection Standards – eDiscovery Trends

On the heels of announcing a transition to nonprofit status by May 2014, the Electronic Discovery Reference Model (EDRM) has now introduced Collection Standards for electronically stored information (ESI) for public comment.

In their press release to announce the new standards, EDRM noted that a group of attendees at this past May’s annual meeting “decided that ‘collection’ of ESI had evolved to the point that it made sense to document collection best practices and considerations for developing a collection strategy. The team, including Julie Brown, Teri Christensen, Kevin Clark, Sean d’Albertis, Kevin Esposito, Faisal Habib, Valerie Lloyd, Rick Nalle, Andrea Donovan Napp and John Wilson, has collaborated over the last several months to develop these standards which are now available for public comment.”

The collection standards page, which is available here, defines best practices to identify what processes are repeatable and the understandable risks and rewards that can be used to evaluate a strategy in various cases.  It focuses on different approaches for collection, including:

  • Forensic Image (Physical or Logical Target)
  • Custom Content/Targeted Image
  • Non-Forensic Copy
  • Exports – Harvesting Email
  • Exports – Non-Email
  • Exceptions (technologies that the standards don’t yet address, including mobile devices, instant messaging, MACs, International Protocols, and social media/ other types of cloud storage).

Each approach includes definitions, pros and cons of that approach and a glossary of terms.  Defined terms are hyperlinked with pop-up definitions, making it easy to define any terms that need it.

Want to know the different types of email formats that are typically exported for discovery purposes?  This document has it.  Want to know when you should consider creating a forensic image of the data in question?  It’s there too.  The standards provide clear best practices in easy-to-understand terms that should be a useful reference for anybody who will need to tackle ESI collection for their cases.  Good move to publish the standards they have now instead of waiting to address the exception technologies, which are much more complex.

According to the press release, the public comment period extends through November 15, 2013, which is only 17 days later than the standards were officially published.  That time period seems a bit short to me; hopefully, EDRM will consider extending it.

It’s shaping up to be a banner year for EDRM, as, since the May annual meeting, several EDRM projects (Metrics, Jobs, Data Set and the new Native Files project) have already announced new deliverables and/or requested feedback.

So, what do you think?  Will these new Collection Standards be a useful best practices guide?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Are You Scared Yet? – eDiscovery Horrors!

Today is Halloween.  Every year at this time, because (after all) we’re an eDiscovery blog, we try to “scare” you with tales of eDiscovery horrors.  So, I have one question: Are you scared yet?

Did you know that there has been over 3.4 sextillion bytes created in the Digital Universe since the beginning of the year, and data in the world will grow nearly three times as much from 2012 to 2017?  How do you handle your own growing universe of data?

What about this?

The proposed blended hourly rate was $402 for firm associates and $632 for firm partners. However, the firm asked for contract attorney hourly rates as high as $550 with a blended rate of $466.

How about this?

You’ve got an employee suing her ex-employer for discrimination, hostile work environment and being forced to resign. During discovery, it was determined that a key email was deleted due to the employer’s routine auto-delete policy, so the plaintiff filed a motion for sanctions. Sound familiar? Yep. Was her motion granted? Nope.

Or maybe this?

After identifying custodians relevant to the case and collecting files from each, you’ve collected roughly 100 gigabytes (GB) of Microsoft Outlook email PST files and loose electronic files from the custodians. You identify a vendor to process the files to load into a review tool, so that you can perform review and produce the files to opposing counsel. After processing, the vendor sends you a bill – and they’ve charged you to process over 200 GB!!

Scary, huh?  If the possibility of exponential data growth, vendors holding data hostage and billable review rates of $466 per hour keep you awake at night, then the folks at eDiscovery Daily will do our best to provide useful information and best practices to enable you to relax and sleep soundly, even on Halloween!

Then again, if the expense, difficulty and risk of processing and loading up to 100 GB of data into an eDiscovery review application that you’ve never used before terrifies you, maybe you should check this out.

Of course, if you seriously want to get into the spirit of Halloween, click here.  This will really terrify you!

What do you think?  Is there a particular eDiscovery issue that scares you?  Please share your comments and let us know if you’d like more information on a particular topic.

Happy Halloween!

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Plaintiffs’ Supreme Effort to Recuse Judge Peck in Da Silva Moore Denied – eDiscovery Case Law

As we discussed back in July, attorneys representing lead plaintiff Monique Da Silva Moore and five other employees filed a petition for a writ of certiorari with the US Supreme Court arguing that New York Magistrate Judge Andrew Peck, who approved an eDiscovery protocol agreed to by the parties that included predictive coding technology, should have recused himself given his previous public statements expressing strong support of predictive coding.  Earlier this month, on October 7, that petition was denied by the Supreme Court.

Da Silva Moore and her co-plaintiffs had argued in the petition that the Second Circuit Court of Appeals was too deferential to Peck when denying the plaintiff’s petition to recuse him, asking the Supreme Court to order the Second Circuit to use the less deferential “de novo” standard.

The plaintiffs have now been denied in their recusal efforts in four courts.  Here is the link to the Supreme Court docket item, referencing denial of the petition.

This battle over predictive coding and Judge Peck’s participation has continued for over 18 months.  For those who may have not been following the case or may be new to the blog, here’s a recap.

Last year, back in February, Judge Peck issued an opinion making this case likely the first case to accept the use of computer-assisted review of electronically stored information (“ESI”) for this case.  However, on March 13, District Court Judge Andrew L. Carter, Jr. granted the plaintiffs’ request to submit additional briefing on their February 22 objections to the ruling.  In that briefing (filed on March 26), the plaintiffs claimed that the protocol approved for predictive coding “risks failing to capture a staggering 65% of the relevant documents in this case” and questioned Judge Peck’s relationship with defense counsel and with the selected vendor for the case, Recommind.

Then, on April 5, 2012, Judge Peck issued an order in response to Plaintiffs’ letter requesting his recusal, directing plaintiffs to indicate whether they would file a formal motion for recusal or ask the Court to consider the letter as the motion.  On April 13, (Friday the 13th, that is), the plaintiffs did just that, by formally requesting the recusal of Judge Peck (the defendants issued a response in opposition on April 30).  But, on April 25, Judge Carter issued an opinion and order in the case, upholding Judge Peck’s opinion approving computer-assisted review.

Not done, the plaintiffs filed an objection on May 9 to Judge Peck’s rejection of their request to stay discovery pending the resolution of outstanding motions and objections (including the recusal motion, which has yet to be ruled on.  Then, on May 14, Judge Peck issued a stay, stopping defendant MSLGroup’s production of electronically stored information.  On June 15, in a 56 page opinion and order, Judge Peck denied the plaintiffs’ motion for recusal.  Judge Carter ruled on the plaintiff’s recusal request on November 7 of last year, denying the request and stating that “Judge Peck’s decision accepting computer-assisted review … was not influenced by bias, nor did it create any appearance of bias”.

The plaintiffs then filed a petition for a writ of mandamus with the Second Circuit of the US Court of Appeals, which was denied this past April, leading to their petition for a writ of certiorari with the US Supreme Court, which has now also been denied.

So, what do you think?  Will we finally move on to the merits of the case?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Transitional Times for Two Big Names in eDiscovery – eDiscovery Trends

The more things change, the more they stay the same.  Even for popular entities such as EDRM and the eDJ Group.

As reported in Law Technology News (EDRM Transitions to Nonprofit Status) by none other than George Socha, co-founder (along with Tom Gelbmann) of the Electronic Discovery Reference Model (EDRM), by May 2014, EDRM will become a nonprofit organization.

As Socha notes in the article:

“When we launched EDRM, we figured it would have a one-year lifespan — focused on addressing two fundamental sets of questions:

1. What is electronic discovery?

2. What might we all do about it at a practical level?”

Now, they’re in their ninth year, growing from 35 participants at that first meeting in May 2005 to over 260 organizations that have participated in EDRM.  On a personal note, I’ve participated since the second year and eDiscovery Daily has published 159 blog posts to date about EDRM and its phases.

For EDRM to be an ongoing entity, it has to be about more than the founders.  As Socha stated in the article, “for EDRM to grow and remain relevant and viable over the long term it cannot continue to be viewed as ‘the George-and-Tom show.’ We heartily agree.”

Transition is also afoot for another organization that has been a terrific resource for eDiscovery information: The eDJ Group.  If you’re not familiar with the name, you probably recognize their web site – eDiscovery Journal.  Now, as Sean Doherty reports in Law Technology News (eDJ Group Puts a New Face on a New Website), eDiscoveryjournal.com is now retired and replaced by the new website (http://edjgroupinc.com).

As Doherty notes in his article, “The big news: The new eDJ website, unlike the eDiscovery Journal, is not supported by vendors. The eDJ Group now offers Platinum, Gold and free (with registration) subscriptions to content comprising research reports, surveys, analyst notes, blogs and the eDJ Matrix”, which is “a SQL database of e-discovery technology, applications and services”.

Doherty also reports that “Paid subscriptions to eDJ content start at $500 for Gold membership, which provides access to executive summaries, short reports, analysts’ notes and the eDJ Matrix. A platinum subscription provides full access to all content and a free subscription with registration includes access to blogs, free reports and the Matrix. Paid subscriptions are sans advertisement.”

It will be interesting to see how the changes impact both organizations.

So, what do you think?  Where do you get your information about eDiscovery?   Besides eDiscovery Daily, of course!  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

What is “Reduping?” – eDiscovery Explained

We’ve talked about “reduping” before, but since this question came up with a client recently, I thought it was worth revisiting.

As emails are sent out to multiple custodians, deduplication (or “deduping”) has become a common practice to eliminate multiple copies of the same email or file from the review collection, saving considerable review costs and ensuring consistency by not having different reviewers apply different responsiveness or privilege determinations to the same file (e.g., one copy of a file designated as privileged while the other is not may cause a privileged file to slip into the production set).  Deduping can be performed either across custodians in a case or within each custodian.

Everyone who works in electronic discovery knows what “deduping” is.  But how many of you know what “reduping” is?  Here’s the answer:

“Reduping” is the process of re-introducing duplicates back into the population for production after completing review.  There are a couple of reasons why a producing party may want to “redupe” the collection after review:

  • Deduping Not Requested by Receiving Party: As opposing parties in many cases still don’t conduct a meet and confer or discuss specifications for production, they may not have discussed whether or not to include duplicates in the production set.  In those cases, the producing party may choose to produce the duplicates, giving the receiving party more files to review and driving up their costs (yes, it still happens).  The attitude of the producing party can be “hey, they didn’t specify, so we’ll give them more than they asked for.”
  • Receiving Party May Want to See Who Has Copies of Specific Files: Sometimes, the receiving party does request that “dupes” are identified, but only within custodians, not across them.  In those cases, it’s because they want to see who had a copy of a specific email or file.  However, the producing party still doesn’t want to review the duplicates (because of increasing costs and the possibility of inconsistent designations), so they review a deduped collection and then redupe after review is complete.

As a receiving party, you’ll want to specifically address how dupes should be handled during production to ensure that you don’t receive duplicate files that provide no value.

Many review applications support the capability for reduping.  For example, CloudNine Discovery‘s review tool (shameless plug warning!) OnDemand®, enables duplicates to be suppressed from review, but then enables the same tags to be applied to the duplicates of any files tagged during review.  When it’s time to export documents for production, the user can decide at that time whether or not to export the dupes as part of that production.

So, what do you think?  Do any of your cases include “reduping” as part of production?   Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Plaintiff’s Request for Native Production, Allows PDFs Instead – eDiscovery Case Law

In Westdale Recap Props. v. Np/I&G Wakefield Commons (E.D.N.C. Sept. 26, 2013), North Carolina Magistrate Judge James E. Gates upheld the plaintiff’s motion to compel the defendants to conduct supplemental searches and production, but denied the plaintiff’s motion with regard to requiring the defendant to produce ESI in native format, instead finding that “production in the form of searchable PDF’s is sufficient”.

In this real estate dispute, the plaintiffs asserted claims for fraud against the defendant.  While the two sides were able to agree on a discovery plan and a protective order, they were unable to agree on the form of production for electronically stored information (ESI), leading to the plaintiff’s motion.  The plaintiffs argued that “the metadata is critical where, as here, a fraud claim is at issue”.

The defendants 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 the plaintiffs filed a motion to compel.

FRCP 34 states that the requesting party “may specify the form or forms in which electronically stored information is to be produced”, which the plaintiff did in 70 of 71 requests for production, requesting that “ESI production be in its native format, rather than searchable PDF’s, so that metadata will not be destroyed.”

However, Judge Gates was not convinced of the need for native production, stating “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.”

Continuing, Judge Gates stated “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.”

Judge Gates did conclude, however, that the defendants were required to perform supplemental searches and production, ordering the defendants to produce all responsive documents based on additional search terms provided by the plaintiffs.

So, what do you think?  Should the plaintiffs have been able to receive the production in their requested native format?   Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.