Electronic Discovery

On Monday, we covered a case where the requesting party objected to receiving a native format production by the opposing party instead of TIFF files (go figure).  In today’s case, it was the producing party that objected to providing a native format production.  Here’s the case.

In the case In re State Farm Lloyds, No. 13-14-00616 (Tx. App. Ct., Oct. 28, 2015), the Texas Court of Appeals, finding that the relator failed to meet its burden to support its objection that it could not produce the discovery through reasonable efforts, denied the petition for writ of mandamus filed by the relator in which it contended that the trial court abused its discretion by ordering the production of discovery in native or near-native formats rather than the “reasonably usable” formats it proposed.

Case Background

In this case which involved a homeowner’s insurance claim after hail storm damage, the parties met repeatedly and unsuccessfully to attempt to negotiate a protocol for the production of ESI, causing the real parties to file a motion to “Motion for the Entry of Production Protocol and Motion to Compel Testimony Regarding Technical Information”.  The relators objected, claiming that the real parties’ proposed ESI protocol language would “impose significant burdens” on it to develop (test and implement) unique and burdensome processes just for this case.  The relators also claimed the real parties’ approach was “unsupported under the law”, indicating that “[t]he Texas Legislature did not craft Rule 196.4 [the Texas rule that addresses the procedures that must be followed in seeking the discovery of data or information that exists in electronic or magnetic format] as a mandate for native production”.

The trial court held an evidentiary hearing on the discovery issues at which various witnesses testified (including Craig Ball, who testified on behalf of the real parties that production of the ESI in native and near-native format was both easier and cheaper for the relator than the production of information lacking metadata and that the “reasonably usable” format proposed by the relator was incomplete and lacked essential information.

After the testimony, the trial court granted the real parties’ motion to compel.  The relator filed a petition for writ of mandamus, contending: (1) Texas Rules of Civil Procedure 196.4 and 192.4 allow for the production of ESI in “reasonably usable forms”; and (2) the trial court clearly abused its discretion by entering an order requiring the production of all ESI in specific formats (e.g., “native”) as demanded by real parties and by refusing to allow State Farm to produce ESI in the “reasonably usable” forms it proffered.

Appellate Court Ruling

The court noted that “Under the express terms of the Rule 196.4, the real parties are required to specify the form of production for requested ESI, and State Farm has the obligation to either produce the responsive ESI that is reasonably available to it in the ordinary course of business or to object if it cannot produce the ESI in the requested form through ‘reasonable efforts.’”  Finding that the “real parties have clearly specified the form for production of ESI as specified by our rules and consistent with federal practice”, the appellate court also found that the real parties had presented evidence that “ESI discovery in native and near-native formats is necessary”.  The appellate court also noted that “the record contains evidence that the discovery offered by State Farm as ‘reasonably usable’ lacked numerous categories of information regarding State Farm’s evaluation of the real parties’ claim such as emails, instant messages, captions next to photographs that incorporated the adjuster’s evaluations of the real parties’ damages, and ‘Xactanalysis’ reports on the claim.”

Noting that “State Farm did not provide the trial court with any evidence regarding the estimated cost or expense of producing the ESI data in the requested forms, any evidence regarding the time that it would take to produce the ESI data in the requested forms, or any other estimate of the ‘reasonable expenses of any extraordinary steps required to retrieve and produce the information’”, the Appellate Court determined that “the trial court acted within its discretion in determining that the discovery was not unduly burdensome or that the burden or expense of the discovery outweighed its likely benefit” and denied the petition for writ of mandamus filed by the relator.

So, what do you think?  Should requesting parties always be able to receive native and near-native formats of ESI if they request it?  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. 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.

In United States v. Meredith, 3:12-CR-00143-CRS (W.D. Ky. Sept. 22, 2015), Kentucky Senior District Judge Charles R. Simpson, III denied the defendant’s motion to compel production of electronically stored information (ESI) by the plaintiff in a usable format, agreeing that the plaintiff had fulfilled its discovery production obligation pertaining to the manner and format of the ESI.

Case Background

In this criminal matter, the government plaintiff began producing discovery in February 2013 and had produced over 300 GB of data plus additional data in four “imaged” computer hard drives, including:

• Several DVDs containing emails and documents;
• Copies of four “imaged” drives from the defendant’s and others’ computers;
• Two hard drives, one containing extracted emails and documents from those imaged hard drives and another containing records obtained during a search warrant;
• A thumb drive containing the Forensic Tool Kit Report of two of the imaged hard drives;
• Audio files of relevant interviews; and
• Paper documents.

The files were searchable using common applications, such as Microsoft Office.  The plaintiff also provided the defendant with written directions on finding specific documents, a Discovery Index and color-coded Media Review Index, and orally explained how it used search terms in reviewing the documents. Despite that assistance, the defendant brought a motion to compel the plaintiff to provide electronically stored information in a more usable format (requesting professional processing and review of the discovery with “industry standard tools” costing nearly $300,000 to be paid by the plaintiff) or to dismiss the case.

Judge’s Ruling

Noting that there is a “dearth of precedent… suggesting what constitutes sufficiently usable discovery” (especially in criminal cases), Judge Simpson acknowledged that the plaintiff’s production was extensive.  However, he noted that “the Government collected into a separate hard drive all document and email files from the imaged drives, two of which were from Defendant’s own desktop and laptop computers”, that the “United States has provided Defendant with discovery that is term searchable by common applications also used by the United States for its own search purposes” and that “[t]he Government also provided Defendant with written and oral assistance in regard to finding specific documents”.

Stating that “[t]his Court does not interpret the Government’s obligation to include providing only evidence that would be helpful to Defendant’s case or searchable using Defendant’s preferred search tools”, Judge Simpson determined that the plaintiff fulfilled its obligation “by providing evidence in a format searchable by multiple common applications, collecting document and email files from imaged hard drives on a separate hard drive, and providing oral and written assistance in searching for files, including a colorcoded and categorized Media Review Index” and denied the defendant’s motion.

So, what do you think?  Was that the correct ruling or should the Government have done more to make the production usable?  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. 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.

Our hearts and prayers go out to the people of Paris in this difficult time.  Having said that, we still have a blog to do each day, so here it is…

In Feist v. Paxfire, Inc., 11-CV-5436 (LGS)(RLE) (S.D.N.Y. Oct. 26, 2015), New York Magistrate Judge Ronald L. Ellis denied the plaintiff’s request for reimbursement of costs and expenses related to document production, finding that the plaintiff had made no showing of significant discovery abuses by the defendant, and had not demonstrated that the defendant engaged in intentionally burdensome production.

Case Background

In this case, the plaintiff claimed that the defendant ignored her request for emails to be produced in TIFF format and also did not properly object to the requested form pursuant to the Parties’ 26(f) Report, and Federal Rule of Civil Procedure 34.  She also claimed that the defendant failed to use a vendor for its overall document collection, which resulted in duplication and discovery delays.  The defendant countered that it produced emails in the native format used by the defendant, which was in the form of Outlook .msg message files and consistent with the plaintiff’s request and also purchased specialized software from, and consulted with, a vendor.

The plaintiff also argued that the defendant intentionally overburdened Plaintiff’s counsel with duplicative document production – the original production in 2012 was provided to the plaintiff in a Dropbox folder, but an attorney for the plaintiff deleted some of the information on Dropbox, causing the Defendants to re-produce the deleted ESI with a supplemental production.  As a result of the disputes, the plaintiff requested for the defendant to award her costs and expenses related to the defendant’s production.

Judge’s Ruling

Taking on the issue of the form of production first, Judge Ellis stated: “The Court finds that Feist’s argument regarding the format of email production is meritless. Feist claims that Paxfire did not properly object to the TIFF format. However, in an email dated March 9, 2015, it is clear that the Parties did engage in ongoing discussions about the form in which emails should be produced.  Following communications with Paxfire, Feist was to speak with the Litigation Support Department about ‘production of documents in .pst form.’  This suggests that Paxfire did object by offering to produce documents in a form other than TIFF. To the extent that documents were produced in .msg form, as opposed to .pst form, the Court finds credible Paxfire’s assertion that the two formats are easily convertible from one form to the other, and that .msg format contains more metadata than TIFF format.  There has been no evidence to establish that .msg form imposed considerable costs on Feist’s part.”

As for the plaintiff’s claims regarding the defendant’s supposed lack of use of a vendor, Judge Ellis noted “Although Paxfire did not use a vendor in a way expected by Feist, the Court considers the manner in which Paxfire did use a vendor to be a non-issue.”  Regarding the defendant’s duplicate production, Judge Ellis indicated that the plaintiff’s “deletions caused Paxfire to reproduce everything it originally produced in 2012, in addition to new material Paxfire believed was relevant to the 2015 production, because Feist stated that Paxfire had failed to produce certain documents.  To the extent that Paxfire duplicated documents from 2012, the Court holds Feist responsible for such duplication. Feist stated that Paxfire ignored Feist’s suggestion that Paxfire restore the deleted Dropbox files, and instead offered to send Feist a hard drive.  On the contrary, in an email to Paxfire’s counsel dated April 14, 2015, Clark stated that Plaintiff’s counsel was attempting to restore files unsuccessfully, and that she understood ‘you are sending us a hard drive with the materials, so we don’t need to worry about drop box [sic]…’”

Finding the plaintiff’s contentions to be without merit, Judge Ellis denied her request for reimbursement of costs and expenses related to document production.

So, what do you think?  Have you ever been associated with a case where the requesting party objected to native format and preferred TIFF instead?  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. 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.