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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.

For Successful Discovery, Think Backwards – eDiscovery Best Practices

The Electronic Discovery Reference Model (EDRM) has become the standard model for the workflow of the process for handling electronically stored information (ESI) in discovery.  But, to succeed in discovery, regardless whether you’re the producing party or the receiving party, it might be helpful to think about the EDRM model backwards.

Why think backwards?

You can’t have a successful outcome without envisioning the successful outcome that you want to achieve.  The end of the discovery process includes the production and presentation stages, so it’s important to determine what you want to get out of those stages.  Let’s look at them.

Presentation

As a receiving party, it’s important to think about what types of evidence you need to support your case when presenting at depositions and at trial – this is the type of information that needs to be included in your production requests at the beginning of the case.

Production

The format of the ESI produced is important to both sides in the case.  For the receiving party, it’s important to get as much useful information included in the production as possible.  This includes metadata and searchable text for the produced documents, typically with an index or load file to facilitate loading into a review application.  The most useful form of production is native format files with all metadata preserved as used in the normal course of business.

For the producing party, it’s important to save costs, so it’s important to agree to a production format that minimizes production costs.  Converting files to an image based format (such as TIFF) adds costs, so producing in native format can be cost effective for the producing party as well.  It’s also important to determine how to handle issues such as privilege logs and redaction of privileged or confidential information.

Addressing production format issues up front will maximize cost savings and enable each party to get what they want out of the production of ESI.

Processing-Review-Analysis

It also pays to determine early in the process about decisions that affect processing, review and analysis.  How should exception files be handled?  What do you do about files that are infected with malware?  These are examples of issues that need to be decided up front to determine how processing will be handled.

As for review, the review tool being used may impact production specs in terms of how files are viewed and production of load files that are compatible with the review tool, among other considerations.  As for analysis, surely you test search terms to determine their effectiveness before you agree on those terms with opposing counsel, right?

Preservation-Collection-Identification

Long before you have to conduct preservation and collection for a case, you need to establish procedures for implementing and monitoring litigation holds, as well as prepare a data map to identify where corporate information is stored for identification, preservation and collection purposes.

As you can see, at the beginning of a case (and even before), it’s important to think backwards within the EDRM model to ensure a successful discovery process.  Decisions made at the beginning of the case affect the success of those latter stages, so don’t forget to think backwards!

So, what do you think?  What do you do at the beginning of a case to ensure success at the end?   Please share any comments you might have or if you’d like to know more about a particular topic.

P.S. — Notice anything different about the EDRM graphic?

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.

Despite Missing and Scrambled Hard Drives, Court Denies Plaintiff’s Request for Sanctions – eDiscovery Case Law

In Anderson v. Sullivan, No. 1:07-cv-00111-SJM (W.D. Pa. 08/16/2013), a Pennsylvania court found “that no sanctions are warranted” despite the disappearance of one hard drive, “scrambling” of another hard drive and failure to produce several e-mails because the evidence was not relevant to the underlying claims and because there was no showing the defendants intentionally destroyed evidence.

In the underlying lawsuit, the plaintiff alleged that she was retaliated against by officials employed by, or associated with, the Millcreek Township School District (“MTSD”) because she made several whistleblower reports against the District and its top administrators, including Dean Maynard (MTSD’s former Superintendent) for violation of her First Amendment rights and the Pennsylvania Whistleblower Act.  In January of 2007, Maynard inadvertently sent an email to an MTSD teacher, instead of to the intended recipient.  The email allegedly revealed previously undisclosed personal relationships that Maynard had with two people he had recommended for employment with the District.  Maynard disclosed this letter to the School Board and an investigation ensued, where several computers were examined, including those of Maynard and the plaintiff.

As part of this examination, MTSD’s IT department removed the original hard drives from the targeted employees’ computers and replaced them with a new hard drive onto which the employee’s active files would be copied so that the laptop would function without interruption; however, the original hard drive from Maynard’s computer was lost.

When the new hard drive that was installed in Maynard’s computer was examined by Anderson’s expert in approximately June 2011, the expert discovered the hard drive was “scrambled” possibly by some type of wiping software.

At summary judgment, the court concluded that the plaintiff’s claims did not qualify as whistleblower reports under the PWA because they did not disclose any non-technical violation of law.  After her claims were dismissed on summary judgment, the plaintiff filed a motion for sanctions due to the disappearance of one hard drive, “scrambling” of a second hard drive, and withholding 44 pages of e-mails from a 10,000-page production to conceal that one of the hard drives was missing.  Although this court entered summary judgment in favor of all defendants, they retained jurisdiction to adjudicate the motion for sanctions.

Because the plaintiff’s claims were dismissed as a matter of law, the court found that sanctions were not warranted on either hard drive because they could not have contained relevant evidence.  The court also determined that there was a lack of evidence suggesting that evidence was intentionally destroyed.  With regard to the 44 pages of e-mails that were not produced, the court found there was nothing in the record to suggest they were intentionally withheld or even were relevant to the plaintiff’s claims.  So, the court denied the motion for sanctions.

So, what do you think?  Should the motion for sanctions have been granted?   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 Rejects Defendant’s “Ultra-Broad” Request, Denies Motion to Compel Production – eDiscovery Case Law
 

In NOLA Spice Designs, LLC v. Haydel Enters., Inc., No. 12-2515 (E.D. La. Aug. 2, 2013), Louisiana Magistrate Judge Joseph C. Wilkinson, Jr. denied a motion to compel a plaintiff and its principal (a third-party defendant) to produce their passwords and usernames for all websites with potentially relevant information and to compel a forensic examination of its computers.

In this trademark infringement case under the Lanham Act, the defendant moved to compel the plaintiff and its principal to produce “‘passwords and user names to all online websites related to the issues in this litigation, including social media, weblogs, financial information and records,’” and to “submit their computers to an exhaustive forensic examination . . . with ‘access to full electronic content [including] online pages and bank accounts, including without limitation, online postings, weblogs, and financial accounts, for a time period from October 13, 2009 to the present, including deleted and archived content.”  

The plaintiff and its principal refused to disclose passwords and user names based on “privacy and confidentiality objections.”  While acknowledging that the defendant is correct in stating that “there is no protectable privacy or confidentiality interest in material posted or published on social media”, Judge Wilkinson noted that the defendant’s citation and arguments “miss the point”.  Judge Wilkinson stated that “ultra-broad request for computer passwords and user names poses privacy and confidentiality concerns that go far beyond published social media matters and would permit Haydel to roam freely through all manner of personal and financial data in cyberspace pertaining to” the plaintiff and its principal.

With regard to the request for forensic examination of the computers of the plaintiff and its principal, Judge Wilkinson acknowledged that such an examination is “within the scope of ESI discovery contemplated by Fed. R. Civ. P. 34(a)(1)(A).”  However, “such requests are also subject to the proportionality limitations applicable to all discovery under Rule 26(b)(2)(C), including the prohibition of discovery that is unreasonably cumulative or duplicative or that could be obtained from some more convenient, less burdensome or less expensive source, or the benefit of which is outweighed by its burden or expense, when considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake and the importance of the proposed discovery to those issues.”  {emphasis added}

While “restrained and orderly computer forensic examinations” have been permitted when it’s been demonstrated that the producing party “has defaulted in its discovery obligations by unwillingness or failure to produce relevant information by more conventional means”, a party’s “mere skepticism that an opposing party has not produced all relevant information is not sufficient to warrant drastic electronic discovery measures”, added Judge Wilkinson.

As a result, Judge Wilkinson ruled that “this overly broad request seeking electronically stored information (ESI), which far exceeds the proportionality limits imposed by Fed. R. Civ. P. 26(b)(2)(C) – expressly made applicable to ESI by Rule 26(b)(2)(B) – is denied.” {emphasis added}

So, what do you think?  Did the defendant’s request exceed proportionality limits?   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.

eDiscovery Daily is Three Years Old!

We’ve always been free, now we are three!

It’s hard to believe that it has been three years ago today since we launched the eDiscoveryDaily blog.  We’re past the “terrible twos” and heading towards pre-school.  Before you know it, we’ll be ready to take our driver’s test!

We have seen traffic on our site (from our first three months of existence to our most recent three months) grow an amazing 575%!  Our subscriber base has grown over 50% in the last year alone!  Back in June, we hit over 200,000 visits on the site and now we have over 236,000!

We continue to appreciate the interest you’ve shown in the topics and will do our best to continue to provide interesting and useful posts about eDiscovery trends, best practices and case law.  That’s what this blog is all about.  And, in each post, we like to ask for you to “please share any comments you might have or if you’d like to know more about a particular topic”, so we encourage you to do so to make this blog even more useful.

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, Ride the Lightning, Litigation Support Guru, Complex Discovery, Bryan College, The Electronic Discovery Reading Room, Litigation Support Today, Alltop, ABA Journal, Litigation Support Blog.com, Litigation Support Technology & News, InfoGovernance Engagement Area, EDD Blog Online, eDiscovery Journal, Learn About E-Discovery, e-Discovery Team ® and any other publication that has picked up at least one of our posts for reference (sorry if I missed any!).  We really appreciate it!

As many of you know by now, we like to take a look back every six months at some of the important stories and topics during that time.  So, here are some posts over the last six months you may have missed.  Enjoy!

Rodney Dangerfield might put it this way – “I Tell Ya, Information Governance Gets No Respect”

Is it Time to Ditch the Per Hour Model for Document Review?  Here’s some food for thought.

Is it Possible for a File to be Modified Before it is Created?  Maybe, but here are some mechanisms for avoiding that scenario (here, here, here, here, here and here).  Best of all, they’re free.

Did you know changes to the Federal eDiscovery Rules are coming?  Here’s some more information.

Count Minnesota and Kansas among the states that are also making changes to support eDiscovery.

By the way, since the Electronic Discovery Reference Model (EDRM) annual meeting back in May, several EDRM projects (Metrics, Jobs, Data Set and the new Native Files project) have already announced new deliverables and/or requested feedback.

When it comes to electronically stored information (ESI), ensuring proper chain of custody tracking is an important part of handling that ESI through the eDiscovery process.

Do you self-collect?  Don’t Forget to Check for Image Only Files!

The Files are Already Electronic, How Hard Can They Be to Load?  A sound process makes it easier.

When you remove a virus from your collection, does it violate your discovery agreement?

Do you think that you’ve read everything there is to read on Technology Assisted Review?  If you missed anything, it’s probably here.

Consider using a “SWOT” analysis or Decision Tree for better eDiscovery planning.

If you’re an eDiscovery professional, here is what you need to know about litigation.

BTW, eDiscovery Daily has had 242 posts related to eDiscovery Case Law since the blog began!  Forty-four of them have been in the last six months.

Our battle cry for next September?  “Four more years!”  🙂

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.

If Production is Small, Does that Mean ESI is Being Withheld? – eDiscovery Case Law

In American Home Assurance Co. v. Greater Omaha Packing Co., No. 8:11CV270 (D. Neb. Sept. 11, 2013), Nebraska District Judge Lyle E. Strom ruled (among other things) that the defendants must disclose the sources it has searched (or intends to search) for electronically stored information (ESI) to the plaintiffs and, for each source, identify the search terms used.

The case arose from the sale of some raw beef trim by defendant (GOPAC) to the plaintiffs (Cargill), which the plaintiffs claimed was contaminated with the bacterium known as “E. coli 0157:H7.”  The defendants filed a counterclaim related to a New York Times article that allegedly contained false information supplied by the plaintiffs that caused the defendants to lose existing and potential customers.

Among the issues addressed in this ruling was a motion to compel from the plaintiffs for “the production of e-mails and other electronically stored information that have allegedly been withheld”.  Regarding the motion, Judge Strom noted that the plaintiff “has failed to identify a specific e-mail or electronic record that GOPAC is refusing to produce. Rather, Cargill argues that the small number of e-mails produced (25) evidences a lack of diligence in production.”  With regard to the size of the production, Judge Strom stated that “the Court cannot compel the production of information that does not exist.”

The defendant provided assurances that it had turned over all ESI that its searches produced and continues to supplement as it finds additional information, offering to search available sources using search terms provided by the plaintiff, but the plaintiff “has refused to supply any additional terms”.

So, Judge Strom gave the defendant a chance to show the extent of its discovery efforts, as follows:

“It is unclear to the Court why ESI that has presumably been in GOPAC’s possession since the start of discovery has not been fully produced. To provide Cargill an adequate opportunity to contest discovery of ESI, the Court will order GOPAC to disclose the sources it has searched or intends to search and, for each source, the search terms used. The Court will also order all ESI based on the current search terms be produced by November 1, 2013. However, given Cargill’s failure to point to any specific information that has been withheld or additional sources that have not been searched, no further action by the Court is appropriate at this time.”

Judge Strom gave the defendant until September 30 to disclose its sources and search terms.  Perhaps more to come…

So, what do you think?  Should the judge have done more or was this an appropriate first step?   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 Awards Sanctions, But Declines to Order Defendants to Retain an eDiscovery Vendor – Yet – eDiscovery Case Law

In Logtale, Ltd. v. IKOR, Inc., No. C-11-05452 CW (DMR) (N.D. Cal. July 31, 2013), California Magistrate Judge Donna M. Ryu granted the plaintiff’s motion to compel responses to discovery and awarded partial attorney’s fees as a result of defendants’ conduct.  The judge did not grant the plaintiff’s request to order Defendants to retain an eDiscovery vendor to conduct a thorough and adequate search for responsive electronic documents, but did note that the court would do so “if there are continuing problems with their document productions”.

Case Background

The plaintiff, a shareholder in pharmaceutical company IKOR, Inc. (“IKOR”), a filed suit against the defendant and two of its officers, Dr. James Canton and Dr. Ross W. Tye, accusing the defendant of misrepresentations to induce the plaintiff to invest, breach of fiduciary duties, breach of contract, and breach of the implied covenant of good faith and fair dealing. The defendant brought counterclaims for breach of a licensing agreement, theft of intellectual property, and interference with prospective economic advantage.

In the motion to compel, the plaintiff sought to compel the defendants’ compliance with a prior court order to compel the production of all responsive documents as well as to compel production from Dr. Canton, who objected to several of Plaintiff’s discovery requests.  The plaintiff contended that Defendants’ document productions were incomplete and that they “failed to adequately search for all responsive electronic documents”, asserting that all three defendants had produced a total of only 121 emails, 109 of which were communications with the plaintiff (including only three pages in response to a request seeking all documents relating to the defendant’s communications with a company run by three of IKOR’s principals. The “dearth of responsive documents, as well as the lack of emails from at least one key individual”, caused the plaintiff to “raise concerns about the quality of Defendants’ document preservation and collection efforts” and express concerns about possible “evidence spoliation through the deletion of emails”. The plaintiff also contended that Dr. Canton waived his objections by failing to serve a timely response.

Judge’s Ruling

Judge Nyu agreed with the plaintiff’s, noting that “Given the paucity of documents produced by Defendants to date, as well as counsel’s own acknowledgment that Defendants’ productions have been incomplete, the court shares Plaintiff’s concerns about the inadequacy of Defendants’ search for responsive documents. Defense counsel has not been sufficiently proactive in ensuring that his clients are conducting thorough and appropriate document searches, especially in light of obvious gaps and underproduction. Under such circumstances, it is not enough for counsel to simply give instructions to his clients and count on them to fulfill their discovery obligations. The Federal Rules of Civil Procedure place an affirmative obligation on an attorney to ensure that a client’s search for responsive documents and information is complete.”  She also agreed with the plaintiff regarding Dr. Canton’s objections, since he “offered no reason for his late responses”.

Judge Nyu ordered the defendants to “produce all remaining responsive documents by no later than August 26, 2013”, noting that “if there are continuing problems with their document productions, the court will order them to retain the services of an e-discovery vendor”.  Judge Nyu also granted attorney’s fees for the plaintiff’s activities “as a result of Defendants’ conduct”, albeit at a reduced amount of $5,200.

So, what do you think?  Was the sanction warranted?   Should the judge have ordered the defendants to retain an eDiscovery vendor?  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 Says “Dude, Where’s Your CAR?” – eDiscovery Case Law

Ralph Losey describes a unique case this week in his e-Discovery Team ® blog (Poor Plaintiff’s Counsel, Can’t Even Find a CAR, Much Less Drive One).  In Northstar Marine, Inc. v. Huffman, Case 1:13-cv-00037-WS-C (Ala. S.D., 08/27/13), the defendant’s motion to enforce the parties’ document production agreement was granted after Alabama Magistrate Judge William E. Cassady rejected the plaintiff’s excuse that “it is having difficulty locating an inexpensive provider of electronic search technology to assist with discovery”.

On June 10 of this year, the parties entered into an agreement for handling electronically stored information (“ESI”) that noted:

“Both parties have or will immediately arrange to use computer-assisted search technology that permits efficient gathering of documents, de-duplication, maintaining the relationship between emails and attachments, full text Boolean searches of all documents in one pass, segregation or tagging of the search results, and export of all responsive files without cost to the other party. Both parties shall share with the other party the specific capabilities of their proposed computer-assisted search technology, and will endeavor to agree on the technology to be deployed by the other party.”

Sounds like a forward thinking plan, right?

As the order also noted, “In addition, the parties agreed to use certain search terms and agreed that ‘[a]ll documents in the search result sets shall be produced immediately to the other side in native format including all metadata.’”  On June 11, the court entered a Supplemental Rule 16(b) Scheduling Order adopting the parties’ plan with regard to ESI.

The defendants were ready quickly, informing the plaintiff on July 3 that they had “collected their ESI and were ready to produce the collected documents” and “inquired as to the method that plaintiff was using to collect its documents for production”.  The defendants sent subsequent inquiries on July 8 and July 24.  On August 6, plaintiff’s counsel notified defendants’ counsel that the plaintiff’s IT provider could not perform the tasks necessary to collect the ESI and that the plaintiff was “trying to locate outside providers of electronic search technology to assist with plaintiff’s ESI production”.  The next day, the defendants filed their motion to compel.

On August 21, the plaintiff filed a response to the defendants’ motion, not objecting to the defendants’ discovery requests, but rather stating that it was “having difficulty locating an inexpensive provider of electronic search technology to assist with discovery” and did not provide a date to complete its production obligation.

Noting that a Rule 16(b) Scheduling Order “is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril”, Judge Cassady called the plaintiff’s failure to comply with the Court’s scheduling order and supplemental orders “unacceptable”.  He also stated that “Plaintiff’s attempts to find an inexpensive provider certainly do not constitute due diligence” and granted the defendants’ motion to compel.

Ralph notes in his observations the perils of agreeing to search terms that have not been tested in advance.  I experienced that very issue with a client that had already agreed to search terms before I was brought in to assist – as a result, one term alone retrieved over 300,000 files with hits because they got “wild” with wildcards.  Always test your search terms before agreeing to them!

So, what do you think?  Do you test your search terms before agreement with opposing counsel?   Please share any comments you might have or if you’d like to know more about a particular topic.

Photo by Tracy Bennett– ©2000 – 20th Century Fox – All Rights Reserved

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.

Data Needs to Be Converted More Often than You Think – eDiscovery Best Practices

We’ve discussed previously that electronic files aren’t necessarily ready to review just because they’re electronic.  They often need processing and good processing requires a sound process.  Sometimes that process includes data conversion if the data isn’t in the most useful format.

Case in point: I recently worked with a client that received a multi-part production from the other side (via a another party involved in the litigation, per agreement between the parties) that included image files, OCR text files and metadata.  The files that my client received were produced over several months to several other parties in the litigation.  The production contained numerous emails, each of which (of course) included an email sent date.  Can you guess which format the email sent date was provided in?  Here are some choices (using today’s date and 1:00 PM as an example):

  • 09/03/2013 13:00:00
  • 9/03/2013 1:00 PM
  • September 3, 2013 1:00 PM
  • Sep-03-2013 1:00 PM
  • 2013/09/03 13:00:00

The answer: all of them.

Because there were several productions to different parties with (apparently) different format agreements, my client didn’t have the option to request the data to be reproduced in a standard format.  Not only that, the name of the produced metadata field wasn’t consistent between productions – in about 15 percent of the documents the producing party named the field email_date_sent, in the rest it was named date_sent.

Ever try to sort emails chronologically when they’re not only in different formats, but also in two different fields?  It’s impossible.  Fortunately, at CloudNine Discovery, there is no shortage of computer “geeks” to address problems like this (I’m admittedly one of them).

As a result, we had to standardize the format of the dates into one standard format in one field.  We used a combination of SQL queries to get the data into one field and string commands and regular expressions to manipulate dates that didn’t fit a standard SQL date format by re-parsing them into a correct date format.  For example, the date 2013/09/03 was reparsed into 09/03/2013.

Getting the dates into a standard format in a single field not only enabled us to sort the emails chronologically by date sent, it also enabled us to identify (in combination with other standard email metadata fields) duplicates in the collection based on metadata fields (since the data was in image and OCR formats, HASH algorithms weren’t a viable option for de-duplication).

Over the years, I’ve seen many examples where data (either from our side or the other side) needs to be converted.  It happens more than you think.  When that happens, it’s good to have a computer “geek” on your side to address the problem.

So, what do you think?  Have you encountered data conversion issues in your 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 Sides with Both Parties in Form of Production Dispute – eDiscovery Case Law
 

The opinion in Kwasniewski v. Sanofi-Aventis U.S. LLC, No. 2:12-cv-00515-GMN-NJK (D. Nev. June 28, 2013) suggests that producing parties can satisfy their obligation to produce documents in an organized manner by offering a table of contents, rendering text searchable, indicating which data responds to which request, and including certain metadata, such as Bates numbers.

During discovery, defendant Sanofi-Aventis responded to the plaintiffs’ discovery requests by producing a large number of documents. The plaintiffs objected, arguing that the response was improper because Sanofi-Aventis failed to provide an index, to indicate which documents corresponded to which request, and to Bates stamp the documents. Sanofi-Aventis argued that it complied with the discovery rules and produced documents as they were “kept in the usual course of business.” Moreover, it had produced the documents in a text-searchable format and included an index. The court denied the plaintiffs’ motion and ordered the parties “to meet and confer in good faith by discussing the merits of each argument in an effort to resolve the dispute without further Court involvement.”

The parties could not resolve the dispute on their own. Subsequently, the plaintiffs re-filed their motion to compel, asking Sanofi-Aventis to organize and Bates number its production by request. Sanofi-Aventis again asserted that it had produced the information properly.

The court began its analysis by quoting the Federal Rule of Civil Procedure 34. To prevent parties from “‘obscuring the significance of documents by giving some structure to the production,’” Fed. R. Civ. P. 34(b)(2)(E)(i)requires parties to choose either to “produce documents as they are kept in the usual course of business” or to “organize and label them to correspond to the categories in the request . . .” The court noted that “[p]roducing parties should not raise ‘unnecessary obstacles for the requesting party’ in the production of ESI.” As a result, “the production of ESI must be rationally organized to enable the parties to determine if responsive documents have been produced.”

Sanofi-Aventis responded that its production was organized and searchable; instead, the problem is that the plaintiffs had “not made a reasonable effort to determine which documents are responsive to their requests.”

The court found that Sanofi-Aventis had complied with Rule 34 by providing a table of contents that described “the types of documents and the volume and page number where those documents are located” and noted that “each volume number is readily identifiable via cover sheet.” Furthermore, Sanofi-Aventis “provided metadata for all the documents, which allows the Plaintiffs to identify the documents by bates range, file path, and document title.” Finally, all but 33 of the produced documents were text-searchable. Accordingly, the court concluded, “if the Plaintiffs make a reasonable effort, they should be able to obtain the documents responsive to their requests.”

Even so, the court found that Sanofi-Aventis’s responses were “deficient in that they create unnecessary obstacles for the plaintiffs”: they “should not have to guess which requests were responded to and which were not.” Therefore, the court granted the motion to the extent the plaintiffs sought “to determine whether the documents produced by Sanofi-Aventis were actually responsive to the Plaintiffs’ discovery requests.”

So, what do you think?  Was that a proper form of production?   Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will be celebrating Labor Day by…not laboring, so we’ll be back with a new post on Tuesday, September 3.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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