Case Blurb: Covad; Don’t blame the processing platform

Post Process: Previous decisions in this contentious case required, among other things, that the producing party submit itself to a third party forensics expert for an examination of its search protocol. In the instant decision, producing party was defending the fact that, after having produced e-mail in hard copy format, and then being ordered to re-produce it in native format, it only produced a native sub-set of the original imaged production. The producing party, in effect, blamed the processing platform for its difficulties in reconciling the two production sets. The court responded:
While the nature of the discrepancy is not explained, I have to assume that fewer e-mails have been produced in native format than were produced on paper. Revonet explains that the platform that Revonet originally used to search for documents was only capable of exporting documents to an HTML format. Thus, Revonet had to use a different platform to obtain .pst files and therefore could not re-run the original search exactly. This may explain the discrepancy. Neither party provides information about the magnitude of the discrepancy, however, largely because Revonet claims that it would be too burdensome for it to cross-reference the electronic documents against the hard copies to determine how many and which e-mails are missing.

While I appreciate that it would be difficult for Revonet to go back through its papers to determine whether all of the documents contained therein have since been produced and that Revonet’s present counsel did not supervise or conduct the August, 2008 search for e-mails, I also appreciate that it is a burden of Revonet’s own making. Covad should not be penalized by Revonet’s failure to maintain its discovery materials in some sort of organized fashion or keep some record of its own actions in this lawsuit. Wyeth v. Impax Labs., Inc., 248 F.R.D. 169, 171 (D. Del. 2006) (“[P]roducing party must preserve the integrity of the electronic documents it produces. Failure to do so will not support a contention that production of documents in native format is overly burdensome.”).

Post Process: In other words, a burden of one’s own making is not a basis for asserting undue burden. Another maxim: choose your platform wisely.

Covad Communs. Co. v. Revonet, Inc., 2009 U.S. Dist. LEXIS 75325 (D.D.C. Aug. 25, 2009).

Case Blurb: Covad Communs Co.; Court examines form of production dispute

On August 4, 2008, [Producing Party] advised [Requesting Party] that it had additional responsive documents available for inspection and copying. [Requesting Party] apparently never responded to that letter, but instead wrote to [Producing Party] on August 18th and demanded that [Producing Party] produce those documents by August 22nd. In an August 20, 2008 conference call, [Producing Party] stated that it would make the 35,000 pages of e-mails that are responsive to [Requesting Party's] request available in hard copy at [Producing Party's] office for inspection and copying. [Requesting Party] took issue with [Producing Party's] offer to produce the documents in hard copy as hard copy is not the documents’ native format. A few weeks later, on September 3, 2008, [Producing Party] offered to make the e-mails available in electronic format as TIFF files, but only on condition that [Requesting Party] agree to pay for the fees incurred by having one of Revonet’s legal assistants delete privileged or otherwise non-responsive documents from the electronic production set. [Requesting Paryt] objects to the form of defendant’s production because printed pages (and TIFF files) are not the native format for e-mails.

Thus, [Producing Party] insists that it be permitted to produce the e-mails in hard copy or as TIFF, provided Covad pays for the necessary deletions.

[...]

Rule 34 of the Federal Rules of Civil Procedure states that (1) the requesting party may designate the form in which the electronically stored information should be produced, and (2) if the request does not specify, then it should be produced in a form in which it is ordinarily maintained, or in a reasonably usable form. Fed. R. Civ. P. 34(b)(1)(C), 34(b)(2)(E)(ii). Thus, as just explained, the parties’ view of the preliminary inquiry here is whether [Requesting Party] designated the form in which the documents should be produced.

Rule 26(f), as amended, specifically requires the parties to discuss the form that production of electronically stored information should take. Fed. R. Civ. P. 26(f)(3)(C). This controversy predates that provision, and underscores its importance. It does not appear that [the parties] ever discussed what form this (or any other) production should take. Instead the parties seem to be making assumptions based on each others’ behavior: [Requesting Party] expecting its documents in electronic form because [Producing Party] hired a company to collect electronically stored information, and [Producing Party] assuming that they should produce 35,000 pages of e-mails in hard copy because [Requesting Party] produced its documents in that format. As there is no agreement, the parties invite me to turn to the language of the requests themselves to determine whether [Producing Party] can produce the e-mails other than in their native format.

The instructions to [Requesting Party's] document requests ask that [Producing Party] “[p]roduce all documents in [its] possession, custody or control, as they are kept in the ordinary course of business, including with all staples and clips attached and with all associated file folders, dividers and labels.”

“Documents” are defined as:

[A]ny tangible thing upon which any expression, communication, representation or data has been recorded by any means including, but not limited to, handwriting, printing, photostating, photographing, on a computer, instant messages, magnetic impulse, or mechanical or electronic recording and any non-identical copies (whether different from the original because of notes made on such copies, because of indications that said copies were sent to different individuals than were the originals, or because of any other reason), including but not limited to working papers, preliminary, intermediate or final drafts, correspondence, memoranda, charts, notes, records of any sort of meetings, invoices, financial statements, financial calculations, diaries, reports of telephone or other oral conversations, desk calendars, appointment books, audio or video tape recordings, microfilm, microfiche, computer tape, computer disk, computer printout, computer card, and all other writings and recordings of every kind that are in your actual or constructive possession, custody or control.

Thus, I am supposed to determine by examining ancient boilerplate — designed for discovery in a paper universe — such nice questions as whether an e-mail, existing in a computer’s memory is a “tangible thing” and how e-mails are “maintained in the ordinary course of business.” While I have considered a similar provision in depth once before, I see no need to repeat that metaphysical exercise here because it is a waste of judicial resources to continue to split hairs on an issue that should disappear when lawyers start abiding by their obligations under the amended Federal Rules and talk to each other about the form of production. I would much prefer to carry out my duties in accordance with Rule 1, which provides that the rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”

More importantly, I do not need to parse words because no one is pretending that Revonet prints all of its e-mails or converts them to TIFF files on a daily basis no matter how ephemeral, meaningless or trivial their content. Therefore, though [Requesting Party's] instruction is hopelessly imprecise and [Producing Party] could colorably argue that it should be interpreted to include several different formats, no reasonable person can honestly believe that hard copy is one of them. For hard copy to be an acceptable format, one would have to believe that [Producing Party], in its day to day operations, keeps all of its electronic communications on paper. There is no evidence in the record that [Producing Party] operates in this manner, and no suggestion that such a practice would be anything but incredible. Therefore, even though I can’t say I know what [Requesting Party] has asked for, I can say what they have not asked for, and that is what they got.

Covad Communs. Co. v. Revonet, Inc., 254 F.R.D. 147 (D.D.C. 2008) (internal citations removed).

Case Blurb: D’Onofrio; Court Discusses Request to Compel Production of Business Plan in Electronic Format

Plaintiff asks the Court to compel the production of the Business Plan 3 “in its original electronic format, with accompanying metadata. FN4 ” Plaintiff argues that Rule 34 permits the production of documents outside of their original format only “if necessary,” and, in this case, no such necessity exists. Defendants respond that: (a) plaintiff did not request that the Business Plan or any other documents be produced in a specific format; (b) production in original electronic format with metadata is not required by the Federal Rules of Civil Procedure or in the absence of a clear agreement or court order, neither of which are present here; and (c) plaintiff has not made any attempt to demonstrate the relevance of the metadata.

FN4: Metadata has been defined as “information about a particular data set which describes how, when, and by whom it was collected, created, accessed, or modified and how it was formatted.” Williams v. Sprint/United Management Co., 230 F.R.D. 640, 646 (D. Kan. 2005) (quoting THE SEDONA GUIDELINES: BEST PRACTICE GUIDELINES AND COMMENTARY FOR MANAGING INFORMATION & RECORDS IN THE ELECTRONIC AGE app. F).

1. Rule 34 — “If Necessary”

As an initial matter, plaintiff argues that Rule 34 of the Federal Rules of Civil Procedure FN5 permits the production of documents other than in their original format only “if necessary.” Reply at 5 (“Defendants have failed to show that their failure to produce the requested documents in their original format has been borne out of necessity.”). Rule 34(a) states, in relevant part: In General. A party may serve on any other party a request . . . 1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party’s possession, custody, or control:

(A) any designated documents or electronically stored information — including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations — stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form Fed. R. Civ. P. 34(a)(1)(A) (emphasis added). Rule 34(a) does not set forth constraints on the manner of production, but instead establishes the permissible scope of a request. (“A party may serve on any other party a request . . . “). Consequently, the “if necessary” clause seized upon by plaintiff is actually a constraint on the requesting party rather than the responding party. In other words, electronic data is subject to discovery if it is stored in a directly obtainable medium. If, however, it is not stored in a directly obtainable medium, a request may be made of the responding party to translate the electronic data into a “reasonably usable form.” Because the step of translating this type of electronic data adds an extra burden on the responding party, the request may only seek for it to be done “if [the translation is] necessary.” It is not the case that this clause requires the responding party to produce data in its original form unless “necessary” to do otherwise.

FN5:All references to the Federal Rules of Civil Procedure are to the version that became effective December 1, 2007.

2. Request for Specific Form of Production

This does not end the analysis of whether a responding party might be required to produce electronic data in its original form with metadata. To the contrary, HN5Go to the description of this Headnote.Rule 34(b) states that a discovery request “may specify the form or forms in which electronically stored information is to be produced.” Fed. R. Civ. P. 34(b)(1)(C). In this case, plaintiff argues that she so specified in Instruction No. 4 of Plaintiff’s Requests for the Production of Documents (the “Instruction”):

[F]or any documents that are stored or maintained in files in the normal course of business, such documents shall be produced in such files, or in such a manner as to preserve and identify the file from which such documents were taken.

It is apparent that this language, when first written, was not meant to encompass electronic data. Instead it addresses a common concern of paper discovery: the identification of a document’s custodian and origination. It is for this reason that the Instruction applies to documents “stored or maintained in files,” and why it seeks to “preserve and identify” the identity of that file. Indeed, the Instruction makes perfect sense when one presumes “file” to refer to a physical file cabinet or folder. FN6

FN6: See MERRIAM-WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY UNABRIDGED (2002) (defining “file” as “a container (as a folder or a metal cabinet) in which papers are kept usually in chronological or alphabetical order for ready reference”).

Of course, “file” can also mean electronic data stored on an electronic medium. FN7 Using this definition, the Instruction can be strained to provide the responding party with two options for producing electronic documents: (a) produce the electronic file containing the document (i.e. a .PDF or .XLS file), or (b) produce the document in such a manner as to “preserve and identify the file from which” it was taken. The inclusion of the word “preserve” makes it very difficult to understand how the Instruction could apply to electronic documents; after all, how can the production of a document without the electronic file encompass the “preserv[ation]” of that electronic file? A more credible reading of the second option is that a document need not be produced as an electronic file if the alternate production “preserve[s the] identi[ty of] the file from which” it was taken. In practice this would likely refer to a “trailer” at the bottom of a printed electronic document containing its location on electronic storage media (i.e. an electronic spreadsheet could be printed on a piece of paper with the trailer “c:\accounting\harry\FY07 charts.xls”). FN8 I do not know if defendants provided such a trailer because plaintiff did not attach the Business Plan to its Motion or provide any other detail concerning its format, other than to state that it was not in its original form with accompanying metadata. Nevertheless, it is clear that the Instruction, if applicable to electronic files, permits production of the Business Plan in a non-native form without accompanying metadata.

FN7:See OXFORD ENGLISH DICTIONARY (2d ed. 1989) (defining file as a “collection of related records stored for use by a computer and able to be processed by it”).
FN8: Indeed, the Motion itself contains a trailer on the bottom of each page that reads: “C:\MyFiles\CLIENT\Shebby\Pleadings\Discovery\MOTIONS\Motion may 16.wpd.”

Ultimately, then, it does not matter whether the Instruction referred to paper or electronic files — a plain reading leads to the conclusion that plaintiff did not make a request that the Business Plan be produced solely in its original format with accompanying metadata. See Vanston Bondholders Prot. Comm. v. Green, 329 U.S. 156, 170, 67 S. Ct. 237, 91 L. Ed. 162 (1946) (“Putting the wrong question is not likely to beget right answers even in law.”). A motion to compel is appropriate only where an appropriate request is made of the responding party. See Fed. R. Civ. P. 37(a)(1)(B); Raghavan v. Bayer USA, Inc., No. 3:05-cv-682, 2007 U.S. Dist. LEXIS 51916, 2007 WL 2099637, at *4 (D. Conn. July 17, 2007) (“The court will not compel discovery that has not been sought.”). Because no such request has been made concerning the Business Plan, the Court will not compel the defendant to produce it in its original form with accompanying metadata. FN9 See, e.g., Ponca Tribe of Indians v. Continental Carbon Co., No. CIV-05-445-C, 2006 U.S. Dist. LEXIS 74225, 2006 WL 2927878, at *6 (W.D. Okla. Oct. 11, 2006) (“The original document requests issued by Plaintiffs failed to specify the manner in which electronic or computer information should be produced. [Defendant] elected to use a commonly accepted means of complying with the request. Nothing in the materials provided by Plaintiffs supports requiring [Defendant] to reproduce the information in a different format. Accordingly, Plaintiffs’ request for reproduction of documents in their native electronic format will be denied.”); Wyeth v. Impax Labs., Inc., No. Civ. A. 06-222-JJF, 248 F.R.D. 169, 2006 U.S. Dist. LEXIS 79761, 2006 WL 3091331, at *1-2 (D. Del. Oct. 26, 2006) (“Since the parties have never agreed that electronic documents would be produced in any particular format, [Plaintiff] complied with its discovery obligation by producing image files”). Cf. Treppel v. Biovail Corp., 233 F.R.D. 363, 374 (S.D.N.Y. 2006) (requiring production in native format where requesting party asked for it and producing party did not object). See also RALPH C. LOSEY, E-DISCOVERY, CURRENT TRENDS AND CASES 158-59 (2007) (summarizing recent cases as amounting to a “lesson . . . that in order to obtain metadata you may need, you should specifically ask for it to begin with”).

FN9:Where the requesting party “does not specify a form for producing electronically stored information, a [responding] [**15] party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Fed. R. Civ. P. 34(b)(2)(e)(ii) (emphasis added).

D’Onofrio v. Sfx Sports Group, Inc., 247 F.R.D. 43, 46-47 (D.D.C. 2008 ) (internal citations removed).

Case Blurb: Faber (II); Limitations on Discovery under FRCP 26(b)(2)(C)

Rule 26(b)(2)(C) limits otherwise permissible discovery if the court determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.

Peskoff v. Faber, 2008 U.S. Dist. LEXIS 51946 at *4 (D.D.C. July 7, 2008 )

Case Blurb: Faber (II); Cost Shifting Good Cause Determination

The following factors guide the “good cause” inquiry required under Rule 26(b)(2)(B): “(1) the specificity of the discovery request; the quantity of information available from other and more easily accessed sources; (2) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; (3) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; (4) the likelihood of finding relevant responsive information that cannot be obtained from other, more easily accessed sources; (5) predictions as to the importance and usefulness of the further information; (6) the importance of the issues at stake in the litigation; and (7) the parties’
resources.” Fed. R. Civ. P. 26, advisory committee’s notes (2006).

Peskoff v. Faber, 2008 U.S. Dist. LEXIS 51946 at *3-4 (D.D.C. July 7, 2008 )

Does Outsourcing Lit Support to other Countries endanger Constitutional Protections?

K&L Gates has posted an article describing one law firm’s effort to obtain guidance on the issue whether transmitting data to foreign service providers waives fourth amendment protections with respect to that data.

The issues posed arising a scenario in which a service provider (in this case, Indian based Acumen Legal Services (India) Pvt., Ltd.) seeking to provide services to a law firm (Newman McIntosh & Hennessey, LLP of Bethesda, Maryland, “NMH”) is probably already providing services to attorneys who either compete with NMH or who represents interests that are adversarial to NMH’s clients. The questions posed in the complaint were whether:

1) its own electronic transmission of client data will affect a waiver of Fourth
Amendment protections to that data,
2) John Doe Esq. or Jane Doe, Esq.’s electronic transmission of non-client
data (such as data produced to John Doe, Esq. and Jane Doe, Esq. during civil discovery)
will waive Fourth Amendment protections to such data,
3) NMH, John Doe, Esq., and Jane Doe, Esq. are required to obtain prior
consent of the owner of such data prior to electronically transmitting it to a foreign
national residing overseas,
4) LPOs, such as Acumen, have an obligation to disclose the likelihood of
Fourth Amendment waiver with respect to data that is electronically transmitted to
foreign nationals residing overseas, and
5) President Bush has an obligation to establish intelligence gathering
protocols for the purpose of safeguarding Fourth Amendment rights with respect to
attorney communications to and from foreign nationals residing overseas.

K&L’s post has a link to the complaint, for those interested. Although this particular case applies to criminal cases, decisions here will affect all types of cases in a myriad of ways. One concerned Outsourcing company has posted its opinion on the matter.

Case Blurb: O’Keefe; Expert Testimony needed to dispute search methodolgy in court

Whether search terms or “keywords” will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics. See George L. Paul & Jason R. Baron, Information Inflation: Can the Legal System Adapt?, 13 RICH. J.L. & TECH. 10 (2007). Indeed, a special project team of the Working Group on Electronic Discovery of the Sedona Conference is studying that subject and their work indicates how difficult this question is. See The Sedona Conference, Best Practices Commentary on the Use of Search and Information Retrieval, 8 THE SEDONA CONF. J. 189 (2008), available at http://www.thesedonaconference.org/content/miscFiles/Best_Practices_Retrieval_Methods_revised_cover_and_preface.pdf. Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. This topic is clearly beyond the ken of a layman and requires that any such conclusion be based on evidence that, for example, meets the criteria of Rule 702 of the Federal Rules of Evidence. Accordingly, if defendants are going to contend that the search terms used by the government were insufficient, they will have to specifically so contend in a motion to compel and their contention must be based on evidence that meets the requirements of Rule 702 of the Federal Rules of Evidence.

United States v. O’Keefe, 537 F. Supp. 2d 14, 23-4 (D.D.C. 2008 )

Case Blurb: Creative Pipe; Court describes process for maintaining attorney-client privilege

[I]nsuring that a privilege or protection claim is properly asserted in the first instance and maintained thereafter involves a several step process. First, pursuant to Fed.R.Civ.P. 26(b)(5), the party asserting privilege/protection must do so with particularity for each document, or category of documents, for which privilege/protection is claimed. At this first stage, it is sufficient to meet the initial burden by a properly prepared privilege log. If, after this has been done, the requesting party challenges the sufficiency of the assertion of privilege/protection, the asserting party may no longer rest on the privilege log, but bears the burden of establishing an evidentiary basis–by affidavit, deposition transcript, or other evidence– for each element of each privilege/protection claimed for each document or category of document. A failure to do so warrants a ruling that the documents must be produced because of the failure of the asserting party to meet its burden. If it makes this showing, and the requesting party still contests the assertion of privilege/protection, then the dispute is ready to submit to the court, which, after looking at the evidentiary support offered by the asserting party, can either rule on the merits of the claim or order that the disputed documents be produced for in camera inspection.

Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 at *11 (D.Md. May 29, 2008 ).

Case Blurb: Creative Pipe; Factors for determining the proper assertion of the attorney-client privilege

[I]n order for the court to determine whether the attorney-client privilege was properly asserted regarding a particular document, the court must make the following fact determinations:
(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.

Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 at *5 (D.Md. May 29, 2008 ) (omitting internal citations).

Case Blurb: Creative Pipe; Factors for the Intermediate Balancing Test for examining whether privilege has been waived

The intermediate test requires the court to balance the following factors to determine whether inadvertent production of attorney-client privileged materials waives the privilege: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure; (2) the number of inadvertent disclosures; (3) the extent of the disclosures; (4) any delay in measures taken to rectify the disclosure; and (5) overriding interests in justice.

[The Producing Party]…bear[s] the burden of proving that their conduct was reasonable for purposes of assessing whether they waived attorney-client privilege…

Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 at *5 (D.Md. May 29, 2008 ) (omitting internal citations).