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The Ongoing Battle Over How ESI is Produced: eDiscovery Trends, Part Three

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Mobile Collection: It’s Not Just for iPhones Anymore.  Now, Tom has written another terrific overview regarding mobile device collection titled The Ongoing Battle Over How ESI is Produced that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  The first part was Tuesday and the second part was Wednesday, here’s the third part.

Objections to Native File Production and Counter-Arguments

So, what are the objections most commonly raised by producing parties? I’ll discuss the standard objections below and after that I’ll mention some counter arguments to those objections, including several that have been raised recently by renowned eDiscovery expert Craig Ball.

The objections to native file production we see most often are the following:

  1. The Defense has already created a database containing all documents to be produced (often in related litigation) and retrieval of native files would place an added cost on the producing party.
  2. Redaction is unduly costly and even impossible with some native files
  3. It is unduly burdensome and costly to require an entirely new review of relevant documents necessary to produce native files
  4. Native files cannot be Bates numbered, making them less useful for presentation activities like depositions and trial.
  5. Federal Rule of Civil Procedure 34 does not specifically call for production in native format
  6. Image-based productions have been accepted in many courts
  7. Static images are equally useful for analysis purposes as native files

The response to most of these objections is first that they are not “specific” as required by Rule 34 and second that they are generally untrue. TIFF files are not as useful as native files in that they are not searchable, contain no metadata from the original files and are not at all conducive to the use of TAR or analytics software for searching.

And more specifically, the notes to the FRCP point out that:

[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.

FRCP Rule 34, Committee Notes on Rules – 2006 Amendment

The latter objection was covered thoroughly by Craig Ball in a blog post of his entitled Degradation: How TIFF+ Disrupts Search. In brief, Craig notes that TIFF load file inaccuracies can reduce accurate searchability (and I routinely see problems in 2/3 of the load files I am asked to investigate, even from large experienced vendors) and further that the suppression of comments or their merger into other portions of text can also severely inhibit accurate searching.

Even more interesting is an analysis Craig performed on the difference in file sizes between TIFF and some standard native files which result in increased costs to requesting parties who will be hosting the documents in a web-based service. In a blog post entitled Don’t Let Plaintiffs’ Lawyers Read This!!, Craig noted that since TIFF images of native files are much larger than the native files and most most eDiscovery service providers are “In the Cloud” and charge by data volume, then a production format that increases data size 15, 20 or 25 times is a violation of the proportionality principle.

Seem far-fetched? Well as Craig notes in his post “let’s do the math” and the math is clear. So clear that one judge in one recent case agreed with him and ordered native file production despite the defendants raising a number of the objections above and disputing Craig’s testimony about file size.

With regard to the objection above raised by producing parties that native files cannot be Bates numbered, making them less useful for depositions, trial and other events where evidence is presented, there is an easy solution to that issue.  Most parties that produce native files generate a file level number for each document that is used to track productions at the document level (essentially a document-level Bates number).  When it comes time to use some of those documents in evidence, they can be converted to image form and the page numbers can be added as a prefix (e.g., PROD00000123-0001, PROD00000123-0002, etc., where “PROD00000123” references the document-level Bates number that was used to track the documents produced.  Keep in mind that only a fraction of the documents produced (often a very small fraction) are used in evidence presentation.  Native file productions don’t eliminate the ability to refer to specific pages within documents when presenting evidence.

We’ll publish Part 4 – Conclusions – next Monday.

So, what do you think?  Do you prefer image-based productions or native file productions? As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

The Ongoing Battle Over How ESI is Produced: eDiscovery Trends, Part Two

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Mobile Collection: It’s Not Just for iPhones Anymore.  Now, Tom has written another terrific overview regarding mobile device collection titled The Ongoing Battle Over How ESI is Produced that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  The first part was yesterday, here’s the second part.

Rule 34(b) and Form of Production

As I’ve said before, “read the rule book shankapotomous.”  So, let’s look at exactly what the rules say about this issue.  Federal Rules of Civil Procedure (FRCP) Rule 34, section (b) reads as follows:

(b) Procedure.

…..(1) Contents of the Request. The request:

……….(A) must describe with reasonable particularity each item or category of items to be inspected;

……….(B) must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and

……….(C) may specify the form or forms in which electronically stored information is to be produced.

…..(2) Responses and Objections.

……….(A) Time to Respond. The party to whom the request is directed must respond in writing within 30 days after being served or — if the request was delivered under Rule 26(d)(2) — within 30 days after the parties’ first Rule 26(f) conference. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.

……….(B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.

……….(C) Objections. An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.

……….(D) Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form—or if no form was specified in the request—the party must state the form or forms it intends to use.

……….(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.

The Rule above seems to make clear three salient points:

  1. The requesting party gets to specify the form of the production
  2. The responding party gets to object and offer a different format IF they can offer a specific set of objections with the reasons why they need to use an alternate format
  3. If neither side specifies a format, the default format is native files.

We’ll publish Part 3 – Objections to Native File Production and Counter-Arguments – on Friday.

So, what do you think?  Do you prefer image-based productions or native file productions?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

The Ongoing Battle Over How ESI is Produced: eDiscovery Trends

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Mobile Collection: It’s Not Just for iPhones Anymore.  Now, Tom has written another terrific overview regarding mobile device collection titled The Ongoing Battle Over How ESI is Produced that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Here’s the first part.

Introduction

Legal disputes in the civil arena typically succeed or fail these days as a result of the practice of eDiscovery.  FRCP Rule 26(f), which provides for a conference of the parties and planning for discovery. This conference was designed to speed up the discovery process but more and more it has become bogged down with disputes over one particular section in that rule, (3)(C), which states that the plan shall contain “any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced;”.

One plaintiffs side commentator, Atty Robert Eisenberg, has been particularly strident in his criticism of the arguments on the forms of production.  Bob is well known in the eDiscovery community as a consultant and educator having been instrumental in forming the both the Georgetown Advanced Ediscovery Institute and the  Ediscovery Training Academy as well as currently being the Program Director at the Cleveland-Marshall College of Law’s (CMLaw) eDiscovery Professional Certificate Program.

Bob stated in an article from last year on my TechnoGumbo blog that defense firms

“ … in virtually every litigation (no matter how varied the types of ESI; no matter how limiting to plaintiffs) [strive] to assure that records produced in discovery are delivered by defendants to plaintiffs in an imaged-based format (Tiff or PDF) with load files for searchable text and metadata; and, practically never provided (except for a tiny proportion that are considered worthless as evidence in image format) as files produced in the manner in which they have been created and stored; that is, in their ultimately most utilizable incarnation; in native form.”

Why do so many producing parties offer load files with static images and text instead of native files?  Often it has to do with perceived, or at least argued, shortcomings of native files.  And defense firms commonly argue that image-based productions are actually cheaper than native file productions because they save plaintiffs the cost of processing and are comparable in utility to native files.

In this paper, we will take a look at the battle over how ESI is produced, including:

  1. Rule 34(b) and Form of Production
  2. Objections to Native File Production and Counter-Arguments
  3. Conclusions

We’ll publish Part 2 – Rule 34(b) and Form of Production – tomorrow.

So, what do you think?  Do you prefer image-based productions or native file productions?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily 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 Grants Plaintiff’s Motion to Compel Discovery in Loan Dispute: eDiscovery Case Law

In Grande v. U.S. Bank Nat’l Ass’n, No. C19-333 MJP (W.D. Wash. Feb. 20, 2020), Washington District Judge Marsha J. Pechman granted the plaintiffs’ motion to compel discovery, finding the policies requested were “relevant under the broad civil discovery standard” and that the defendants “ha[d] not demonstrated that the policies are confidential, proprietary, or trade secrets”.  Judge Pechman also granted the plaintiffs’ request for attorney’s fees in bringing the motion.

Case Background

In this case involving the plaintiffs’ allegations that the defendants breached a loan agreement (and violated several laws), the plaintiffs served written discovery on the defendants in July 2019 – to which the defendants responded in September 2019 with a production that the plaintiffs described as “completely deficient.”  The Parties held a discovery conference in October and the defendants served amended responses several weeks later, which the plaintiffs indexed and determined that large numbers were duplicative and the defendants’ production remained deficient.  After the plaintiffs drafted a Request for a Joint Submission to the Court pursuant to Local Rule 37, seeking assistance in resolving the discovery disputes, the defendants’ attorney declined to use the joint submission but claimed that the document provided him with “additional information” that clarified the alleged discovery deficiencies and asked for plaintiffs’ counsel to “work with him” to resolve the discovery dispute.

The plaintiffs held another discovery conference in November 2019 and the defendants agreed to supplement production with additional documents totaling 1,000 pages, voice recordings of four phone calls made by the Plaintiffs to Nationstar, a full life of loan history, and communications that had not been previously produced, all before November 28.  The defendants produced the 1,000 pages but none of the other material, with no explanation.  On January 11, 2020 the plaintiffs filed a Motion to Compel, seeking complete responses to a dozen Interrogatories and Requests for Production, as well as attorney’s fees.  Several weeks later, the defendants produced additional documents, a privilege log, and supplemental discovery responses, but still did not produce documents responsive to Request for Production No. 17.  The defendants argued that the loan modification guidelines requested in that request were not relevant and confidential, proprietary, and trade secrets.

Judge’s Ruling

With regard to the plaintiffs’ motion to compel and the defendants arguments, Judge Pechman stated: “First, the requested documents are relevant under the broad civil discovery standard, which allows litigants to ‘obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party.’…Here, Plaintiffs contend that documents responsive to this request provide ‘information about the policies, processes, and procedures Defendants used to make various decisions regarding the Grandes’ loan modification application.’…Where Plaintiffs allege that Defendants’ evasive, shifting explanations for denying their loan modification were bad faith attempts to avoid their obligations, comparing Defendants’ policies to their behavior is relevant to Plaintiffs’ claims.”

Continuing, Judge Pechman stated: “Second, Defendants have not demonstrated that the policies are confidential, proprietary, or trade secrets… Here, Defendants have not moved for a protective order or listed the documents on a privilege log…Nor have they explained how these policies are trade secrets that give them a competitive advantage over competitors… Further, the only two cases cited by Defendants concern a third-party subpoena where the movant failed to demonstrate relevance and a case concerning a motion for a protective order, neither of which support Defendants’ position… Because the Defendants here have not described any harm that would result from producing the guidelines and have not sought a protective order, the Court declines to find the documents so confidential that they cannot be produced. Defendants must therefore produce all documents responsive to Plaintiffs’ Request for Production No. 17 within seven days of the date of this Order.”

Judge Pechman also granted the plaintiffs’ request for attorney’s fees in bringing the motion, stating: “Here, Plaintiffs brought this Motion after several good faith attempts to obtain the requested discovery…and nothing before the Court suggests that Defendants’ delay was justified or that an award of expenses would be unjust. To the contrary, Defendants’ substantial delay in responding to the discovery requests has delayed the trial in this matter…and necessitated the present Motion”.

So, what do you think?  Was the court justified in granting the request for attorney’s fees or should it have been more patient since the defendants continued to supplement their production?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

By the way, there was some confusion about the list of EDRM Global Advisory Council members that I initially posted on Friday.  I had thought that was the entire list, but it was only a supplemental list to the list of Global Advisory Council members announced earlier this year.  I have updated my post to reflect the entire list of members — click here to view the post with the entire list this time.

Case opinion link courtesy of eDiscovery Assistant, which now is directly to the eDA site, enabling you to search within the case and see related cases (with eDA subscription).

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data..

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

Plaintiff Tells Defendant “File Motion to Compel”, Defendant Does and Wins: eDiscovery Case Law

In White v. Relay Res. & Gen. Servs. Admin., NO. C19-0284-JCC (W.D. Wash. Feb. 14, 2020), Washington District Judge John C. Coughenour granted the defendant’s motion to compel, requiring the plaintiff to provide documents responsive to the defendant’s requests for production, provide the information requested in each interrogatory and provide initial disclosures and that “[f]ailing to provide this information may result in sanctions under Rule 37, including dismissal of the matter.”

Case Background

In this employment discrimination claim against the defendant where the plaintiff alleged the defendant discriminated against her because she is deaf, the defendant served 31 requests for production and 13 interrogatories on the plaintiff in November 2019.  The plaintiff responded to these requests about a month later, objecting to the requests for production on various grounds and failing to indicate whether she was withholding responsive documents.  In response to the interrogatories, the plaintiff raised broad objections and did not provide any of the requested information, indicating in each response that she would later provide the requested information if it was “relevant” to responding the interrogatory.  The defendant also claimed that the plaintiff did not produce initial disclosures.

The defendant attempted to meet and confer with the plaintiff two days after receiving her responses, expressing concern with sufficiency of her responses and offering an extension for the plaintiff to supplement her responses.  The defendant also requested an in-person meeting to attempt to resolve the discovery dispute, but the plaintiff refused to meet outside the State of Virginia and also refused a teleconference, stating that she did “not have any line of communication open except emails and written communication.”  So, the defendant proceeded to email the plaintiff specific examples of its “serious concerns regarding the insufficiency of [her] responses.” The plaintiff then supplemented her responses to the requests for production with three screenshots of email correspondence between the plaintiff and the defendant’s employees about benefits, as well as a scanned page from a yearbook.  In response, the defendant informed the plaintiff that if she did not provide responsive documents or answers to its interrogatories by the extended deadline, it had no choice but to file a motion to compel with the Court.  Instead of further supplementing her responses, the plaintiff replied, “Ok. File Motion to Compel.”

Judge’s Ruling

Judge Coughenour first noted that “although the parties did not meet in person or have a telephone conference, Defendant made a good faith effort to satisfy the meet-and-confer requirement before filing the instant motion to compel. Defendant made multiple attempts to resolve its discovery dispute before reaching a genuine impasse on December 30, 2019, when Plaintiff told Defendant to ‘File Motion to Compel.’…Consequently, Defendant has satisfied the meet-and-confer requirement.”

With regard to the requests for production, Judge Coughenour stated: “the Court has reviewed Defendant’s requests for production, and they appear to be relevant and proportional to the case… The Court acknowledges Plaintiff is not represented by counsel and that she may be responding to and cooperating with Defendant to the best of her ability…Nevertheless, Plaintiff’s perfunctory objections do not reflect a good faith effort to comply with discovery rules. Plaintiff must make reasonable efforts to provide documents responsive to Defendant’s requests for production. Failure to do comply may result in sanctions, including dismissal of the present action.”

With regard to the interrogatories, Judge Coughenour found “Defendant’s interrogatories to be facially relevant and proportional to the needs of the case.”  He also stated: “Here, Plaintiff raised vague, broad objections to each of Defendant’s 13 interrogatories and did not provide any of the requested information…Within 30 days, Plaintiff must provide Defendant with the information requested in each interrogatory. Failing to make reasonable efforts to respond to Defendant’s interrogatories may result in sanctions under Rule 37, including dismissal of the matter.”

Judge Coughenour also stated, in fully granting the motion to compel: “Plaintiff is ordered to provide Defendant with initial disclosures at this time. Failing to provide this information may result in sanctions under Rule 37, including dismissal of the matter.”

So, what do you think?  Is the plaintiff’s failure to obtain counsel representation jeopardizing her case before it even gets going?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Here’s a Terrific Listing of eDiscovery Workstream Processes and Tasks: eDiscovery Best Practices

Let’s face it – workflows and workstreams in eDiscovery are as varied as organizations that conduct eDiscovery itself.  Every organization seems to do it a little bit differently, with a different combination of tasks, methodologies and software solutions than anyone else.  But, could a lot of organizations improve their eDiscovery workstreams?  Sure.  Here’s a resource (that you probably already know well) which could help them do just that.

Rob Robinson’s post yesterday on his terrific Complex Discovery site is titled The Workstream of eDiscovery: Considering Processes and Tasks and it provides a very comprehensive list of tasks for eDiscovery processes throughout the life cycle.  As Rob notes:

“From the trigger point for audits, investigations, and litigation to the conclusion of cases and matters with the defensible disposition of data, there are countless ways data discovery and legal discovery professionals approach and administer the discipline of eDiscovery.  Based on an aggregation of research from leading eDiscovery educators, developers, and providers, the following eDiscovery Processes and Tasks listing may be helpful as a planning tool for guiding business and technology discussions and decisions related to the conduct of eDiscovery projects. The processes and tasks highlighted in this listing are not all-inclusive and represent only one of the myriads of approaches to eDiscovery.”

Duly noted.  Nonetheless, the list of processes and tasks is comprehensive.  Here are the number of tasks for each process:

  • Initiation (8 tasks)
  • Legal Hold (11 tasks)
  • Collection (8 tasks)
  • Ingestion (17 tasks)
  • Processing (6 tasks)
  • Analytics (11 tasks)
  • Predictive Coding (6 tasks)*
  • Review (17 tasks)
  • Production/Export (6 tasks)
  • Data Disposition (6 tasks)

That’s 96 total tasks!  But, that’s not all.  There are separate lists of tasks for each method of predictive coding, as well.  Some of the tasks are common to all methods, while others are unique to each method:

  • TAR 1.0 – Simple Active Learning (12 tasks)
  • TAR 1.0 – Simple Passive Learning (9 tasks)
  • TAR 2.0 – Continuous Active Learning (7 tasks)
  • TAR 3.0 – Cluster-Centric CAL (8 tasks)

The complete list of processes and tasks can be found here.  While every organization has a different approach to eDiscovery, many have room for improvement, especially when it comes to exercising due diligence during each process.  Rob provides a comprehensive list of tasks within eDiscovery processes that could help organizations identify steps they could be missing in their processes.

So, what do you think?  How many steps do you have in your eDiscovery processes?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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

Citing Protective Order, Court Grants Motion to Quash the Subpoena of Third Party Expert: eDiscovery Case Law

As we all wind our way back home after another Legaltech, here is a new case law post for you.  Next week, we’ll have some observations from attendees at the show (including me).

In Rhino Metals, Inc. v. Sturdy Gun Safe, Inc., No. 1:18-cv-00474-DCN (D. Idaho Jan, 22, 2020), Idaho David C. Nye granted the motion of the Defendant/Counterclaimant to Enforce the Protective Order that was related to a report prepared by defendant’s expert that was produced to the plaintiff in this case and quashed the subpoena that was issued to the Plaintiff/Counter-Defendant from a party in another case.

Case Background

In this case, the defendant produced the report of one of its experts to the plaintiff.  Pursuant to the parties’ agreed upon protective order in this case, the defendant designated the expert’s report as “Confidential”, which limited the receiving party’s ability to use and disclose the report.  Unrelatedly, that same expert produced a report on behalf of a plaintiff in a legal matter titled GDM Enterprises, LLC v. Astral Health & Beauty, Inc., a case in the Western District of Missouri.  On December 20, 2019, the plaintiff issued a subpoena to the defendant in the Missouri action requesting the expert’s report in that case. Ten days later, the defendant in the Missouri case issued a reciprocal subpoena to the plaintiff requesting the expert’s report in this case.

The defendant raised the issue to the Court informally and the plaintiff represented that it would not respond to the subpoena until the Court had an opportunity to review and rule on any motions filed in the instant case.  Concerned that this information would leak into the public sphere if turned over, the defendant moved the Court for an order enforcing the protective order in this case and prohibiting the plaintiff from responding to the subpoena and turning over the requested information.

Judge’s Ruling

Judge Nye began his analysis by stating: “As a threshold matter, the Court notes that this Court—the District of Idaho—is the correct forum to take up this matter”, noting that “Sturdy is the party ‘affected by a subpoena’ and that “the subpoena requires compliance in this District”.  Noting that “under Rule 45, the party to whom a subpoena is directed must ‘produce [the designated items] in that person’s possession, custody, or control’”, Judge Nye stated:

“Here, the items at issue are only in the temporary possession, custody, or control of Rhino pursuant to a Protective Order of this Court and thus not subject Astral’s subpoena… Sturdy is the true, rightful owner of this material. Sturdy is the correct party to whom the subpoena should have been directed. The mere fact that Rhino has the information at this time does not mean that the information is within its possession, custody, or control and subject to disclosure… Thus, the report Astral seeks via its subpoena is not within Rhino’s possession, custody, or control for purposes of discovery. Further, were Rhino to turn it over, it would be violating the terms of the protective order in this case and subject to sanctions.”

Addressing the plaintiff’s concerns that it might be required to respond to the subpoena, Judge Nye also noted that “the bottom line is that Rhino is not ‘disobeying a lawful subpoena’ by not turning over the information Astral seeks because it isn’t Rhino’s information to turn over in the first place.”  As a result, he granted the defendant’s motion and quashed the subpoena issued to the plaintiff.

So, what do you think?  Do you agree that the report wasn’t in the possession, custody and control of the plaintiff?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily 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 Rules Defendant’s Production Need Not Be Lost in Translation: eDiscovery Case Law

In NY Machinery v. The Korean Cleaners Monthly, No. 2:17-12269-SDW-ESK (D.N.J. Jan. 6, 2020), New Jersey Magistrate Judge Edward S. Kiel, noting that “Rule 34 does not address which party has the obligation to translate documents into English” denied the plaintiffs’ application seeking to compel the defendants to translate documents served as part of their document production.

Case Background

In this case involving allegations unfair competition, false advertising, defamation, false light and trade libel (among other allegations), the plaintiffs wrote to the defendants in April 2019 asserting various deficiencies in the defendants’ discovery responses, including this statement:

“Defendants’ document production contains numerous documents, including emails, that appear to be written in Korean or Japanese. Plaintiffs have incurred the expense of obtaining certified English translations of documents contained in their production. We expect Defendants to promptly produce certified translations of these documents.”

The parties continued to exchange correspondence relating to discovery disputes, which included the plaintiffs’ demand that the defendants provide certified translations of documents and a dispute about a telephone-status conference on September 6, 2019 and whether a judge ordered the defendants to provide certified translations of Defendants’ document production by September 22, 2019.

Judge’s Ruling

Judge Kiel noted: “The question before the Court is: Who bears the cost of translating foreign-language documents produced in response to a request for production of documents? There is no clear answer in the Third Circuit.”

But, Judge Kiel also stated: “The Court, however, finds the analysis and decision in Nature’s Plus Nordic A/S v. Natural Organics, Inc. 274 F.R.D. 437, 439 (E.D.N.Y. 2011) to be persuasive and adopts it herein.” {emphasis added}  Judge Kiel noted that ruling “held that Rule 34 ‘d[oes] not provide the district court with any authority to direct the party producing documents to translate them and that such orders violate the well-accepted principle that each party bear the ordinary burden of financing his own suit… and that each party … is expected to bear any special attendant costs.’…Thus, absent a showing of ‘prejudice to [the requesting party for] undue delay,’ the party responding to document demands has no obligation to provide translations to foreign-language documents.”

Noting that “Plaintiffs do not claim that the documents produced by Defendants in response to Plaintiffs’ discovery demands are irrelevant” and that “to satisfy their obligation under Rule 34, Defendants produced all documents responsive to Plaintiffs’ request, including the foreign-language documents at issue”, Judge Kiel denied the plaintiffs’ request to have the defendants translate the documents or shift any of the costs for translating the documents to the defendants.

So, what do you think?  Should parties be responsible for translating foreign language documents they produce?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily 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 Orders Defendants to Produce All ESI in Native Format: eDiscovery Case Law

In Kamuda et al. v. Sterigenics U.S., LLC et al., No. 18 L 10475 (Ill. Cir. Jan. 6, 2020), Circuit Court Judge Christopher E. Lawler ruled that “[u]nder Illinois Supreme Court Rules 201(b)(4) and 214(b), the parties should produce all ESI in the respective native formats”, agreeing that Rule 214 entitles Plaintiffs to their requested ESI format and rejecting the defendants’ offered compromise to produce some of the ESI in native format, but not all.

Case Background

In this case, the parties disputed whether the parties should produce electronic discovery materials in the “native” formats requested by the plaintiffs or the “TIFF+” formats proposed by the defendants.  The plaintiffs argue the TIFF+ format would impose unreasonable costs and create unnecessary challenges to potential witnesses and deponents. In their reply brief, the plaintiffs also contended that as the party requesting discovery, Illinois Rule 214 entitled them to their preferred ESI format.  Rule 214(b) reads as follows:

“With regard to electronically stored information as defined in Rule 201(b)(4), 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.”

The defendants requested to produce ESI in the TIFF+ format, arguing that TIFF+ is not unreasonably expensive, represents the standard practice in electronic discovery matters, and best serves cybersecurity interests.  However, the defendants offered a compromise, proposing the parties would produce Microsoft Excel spreadsheets, PowerPoint presentations, and Word documents with tracked changes and comments in the respective native formats. All other materials, including emails, would be in the TIFF+ format.

In December 2019, the parties submitted written briefs in preparation for a case management conference. And, on December 18, the Court heard oral arguments. In support of Plaintiffs’ position, a retained consultant testified and provided a PowerPoint presentation. The defendants submitted a written response to the consultant’s presentation on December 27 and the plaintiffs submitted a written reply on January 3.

Judge’s Ruling

Judge Lawler stated: “Since December 18, the Court has considered the parties’ arguments and submitted materials. After careful review, the Court appreciates Defendants’ offer to compromise and resolve the ESI issue this early in the proceedings. Yet the parties disagree. And ‘[a]bsent agreement, ESI must be produced as ordinarily maintained or in a form reasonably usable to the requesting party.’ The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 SEDONA CONF. J. pp. 171-72, Comment 12.b.”

Going further, Judge Lawler stated: “In addition, the Court agrees that Rule 214 entitles Plaintiffs to their requested ESI format…Plaintiffs specifically request the native format, which the Court has no reason to doubt is reasonably usable. The parties must therefore produce all ESI, including emails, in the respective native format.”

While ruling for the plaintiffs, Judge Lawler did also state: “That said, the Court recognizes the parties’ concerns about cybersecurity, minimizing costs, and eliminating unnecessary delays. The Court is therefore willing to revisit this decision if reasonable needs arise. Parties may show such reasonable needs by affidavits from their vendors or consultants.”

Here’s a new post by Craig Ball regarding plaintiffs and production formats that he just posted yesterday – hat tip to him for making me aware of this case.  After all, he was the retained consultant!  ;o)

So, what do you think?  Should courts always grant native productions if the requesting parties timely request that format?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily 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 Grants Motion to Compel in Elizabeth Holmes Theranos Criminal Case: eDiscovery Case Law

In United States v. Holmes, et al, No. 5:18-cr-00258-EJD-1 (N.D. Cal. Nov. 5, 2019), California District Court Judge Edward J. Davila granted the defendants’ motion to compel federal prosecutors to produce material responsive to six requests from the Food and Drug Administration (FDA) and the Centers for Medicare and Medicaid Services (CMS), disagreeing with the prosecution’s contention that it could not be compelled to produce documents from under Rule 16 because it lacked access to them.

Case Background

In this criminal case regarding charges of wire fraud and conspiracy to commit wire fraud against key officers of the now defunct company Theranos, on April 15, 2019, defendant Holmes (later joined by defendant Balwani) moved to compel federal prosecutors to produce material responsive to six requests from FDA and CMS.  In addition, the defendants raised concerns about the Agencies’ preservation efforts, the failure of FDA to run certain search terms and failure of the Agencies to complete production by either an original deadline of October 2 or an extended deadline of October 25.

Judge’s Ruling

Noting that Rule 16 “grants criminal defendants a broad right to discovery”, Judge Davila stated: “The Prosecution does not oppose Defendants obtaining the sought-after documents, but it argues that it cannot be compelled to produce the documents under Rule 16 because it lacks access…The court disagrees. Even though the Agencies are not part of DOJ, the Prosecution’s involvement with the Agencies’ discovery efforts reveals a relationship that includes significant access, communication and assistance, such as CMS’s use of DOJ’s Litigation Technology Service Center. This cooperative relationship moves the Prosecution closer to privity of knowledge and control of the information sought. The Prosecution’s access to the requested documents is further shown through its dealings with the Agencies prior to the filing of this motion.”  As a result, Judge Davila “order[ed] the Prosecution to produce the documents discussed below as part of their Rule 16 obligation, and to assist the Agencies however possible to ensure the timely production of documents.”

Turning to the alleged deficiencies in the Agencies’ productions, Judge Davila noted, among other concerns, that “Defendants contend that over 1000 emails from a single witness have been produced as fragmentary documents—i.e, that the produced emails omit portions of the original email, such as the “to,” or “from,” or the body fields… Defendants also contend that CMS and FDA have failed to produce some hardcopy documents.”  As a result, Judge Davila “order[ed] that the Agencies shall continue their investigations of these issues and shall disclose the procedures and results of their investigations to the parties no later than November 26, 2019.”

Judge Davila also ordered FDA to “run searches of all of its custodians’ documents using the following terms: ‘LDT’, ‘Laboratory Developed Test’, ‘Theranos’, ‘fingerstick’ or ‘finger stick’, and ‘nanotainer’” and “produce any responsive documents returned by these searches” to address search term concerns expressed by the defendants.  With regard to the missed production deadlines, Judge Davila “order[ed] the Agencies and the Prosecution to complete the production of documents by December 31, 2019.”

Finally, Judge Davila “order[ed] the Agencies, the Prosecution, and Defendants to meet and confer on the above issues, and other discovery related matters” to include “(a) whether the Agencies have or will produce employee text messages, (b) any deficiencies in FDA’s production that are attributable to FDA’s instruction to employees to manually search for responsive documents instead of forensically searching for, collecting, and reviewing documents, (c) the terms the Agencies use to search for and collect potentially responsive documents, and (d) FDA’s redactions to documents and withholding of duplicate documents.”  Judge Davila also set a further status conference for January 13, 2020.

So, what do you think?  Was the judge correct to order the prosecution to produce documents from other agencies?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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