Post Process

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Archive for the ‘Form of Production’ Category

Case Blurb: Mirbeau of Geneva Lake: Paper not a Substitute when ESI is Requested

Posted by rjbiii on December 29, 2009

It is not a valid ground for objection that “relevant, non-privileged, electronic data can be produced in paper form, when the requesting party has specified product in an electronic format.”

Mirbeau of Geneva Lake LLC v. City of Lake Geneva, 2009 U.S. Dist. LEXIS 101104 at *3 (E.D. Wis. Oct. 15, 2009)

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Posted in 7th Circuit, Case Blurbs, E.D. Wis., Form of Production, Judge J.P. Stadtmueller | Leave a Comment »

Case Blurb: Mirbeau of Geneva Lake; Discoverability of ESI

Posted by rjbiii on December 29, 2009

The advisory notes to the Federal Rules of Civil Procedure indicate that the federal rules take an “expansive approach toward discovery of ESI and that “discovery of [ESI] stands on equal footing with discovery of paper documents.” ESI must be produced, “translated, if necessary by the respondent into a reasonably usable form.”

Mirbeau of Geneva Lake LLC v. City of Lake Geneva, 2009 U.S. Dist. LEXIS 101104, at *2-3 (E.D. Wis. Oct. 15, 2009)(internal citations removed).

Posted in 7th Circuit, Case Blurbs, E.D. Wis., Form of Production, FRCP 34(a), Judge J.P. Stadtmueller, Scope of Discovery | Leave a Comment »

Case Blurb: Benedict College; Printed and “PDF’d” DB Records Lacking in Completeness

Posted by rjbiii on December 18, 2009

The court rejects [Producing Party’s] argument that its production of nearly 5,000 pages of documents were provided “as they are kept in the usual course of business” and therefore need not be organized and labeled to correspond to the categories in [Requesting Party’s] discovery requests. According to [Producing Party’s] representations at the hearing and its brief, the documents were not provided as in the usual course of its business, but printed out from its database, copied, Bates numbered, converted to pdf format and then produced–with the information in the charts neutered of their derivation and metadata, and lacking the necessary identifiers to enable [Requesting Party] to make sense of the information provided.

Benedict College v. Nat’l Credit Sys., 2009 U.S. Dist. LEXIS 106742 at *9-10 (D.S.C. Nov. 16, 2009)

Posted in 4th Circuit, Case Blurbs, D.S.C., Form of Production, Judge Joseph F. Anderson Jr. | Tagged: | Leave a Comment »

Case Blurb: Mformation Technologies; Court discusses document dumps and the meaning of ‘maintained in the usual course of business’

Posted by rjbiii on November 29, 2009

Courts have struggled with the interpretation of Fed. R. Civ. P. 34 which allows production as documents are maintained in the usual course of the producing party’s business. In attempting to define the requirements that should be place on a producing party who chooses to produce documents in the manner they are normally maintained, the courts have attempted to balance the burden on the respective parties. Generally, courts have concluded that simply dumping a mass of documents on the requesting party may not satisfy the rule’s requirements, even though the undifferentiated mass of documents are in the same form as maintained by the producing party.

Espy v. Mformation Techs., 2009 U.S. Dist. LEXIS 81832, 23-24 (D. Kan. Sept. 9, 2009)(citations removed).

Posted in 10th Circuit, Case Blurbs, D. Kan., Data Dump, Form of Production, FRCP 34, Magistrate Judge Donald W. Bostwick | Leave a Comment »

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

Posted by rjbiii on September 2, 2009

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).

Posted in 4th Circuit, Case Blurbs, D.D.C., EDD Processing, EDD Vendors, Form of Production, Magistrate Judge John M. Facciola | Leave a Comment »

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

Posted by rjbiii on February 23, 2009

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).

Posted in 4th Circuit, Case Blurbs, D.D.C., Form of Production, FRCP 26(f), FRCP 34(b), In the Ordinary Course of Business, Magistrate Judge John M. Facciola | Leave a Comment »

Case Blurb: Collins & Aikman Corp.; Form of Document Production for Gov’t Entities Conducting Investigations

Posted by rjbiii on February 3, 2009

Under Rule 34 of the Federal Rules of Civil Procedure, a party has two options for the production of documents in response to a discovery request. The litigant may either 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.” The Advisory Committee Note states that the purpose of this new rule language — added in 1980 — was to eliminate the practice of “‘deliberately [mixing] critical documents with others in the hope of obscuring significance.'” Allowing the production of documents as they “are actually kept in the usual course of business” was intended to minimize the burden of production while maintaining the “internal logic reflecting business use.”

Rule 34 does not elaborate on the term “usual course of business.” A party choosing to produce documents as maintained in the ordinary course of business “bears the burden of demonstrating that the documents made available were in fact produced consistent with that mandate.” In most cases, documents produced pursuant to Rule 34 will be organized by subject matter or category. The provision prohibits “simply dumping large quantities of unrequested materials onto the discovering party along with the items actually sought.”

The SEC [(producing party)] contends that even if the compilations are not protected as work product, it has the option of producing the complete, unfiltered, and unorganized investigatory file, as this is how the documents are maintained in the usual course of its business. As noted above, Rule 34 mandates that documents must be produced organized by the subjects of the request or organized as they are kept in the usual course of business by the producing party. The key to this dichotomy is the assumption that in either case the documents will be organized — that records kept in the usual course of business would not be maintained in a haphazard fashion. Thus regardless of the form chosen, the production will be useful to the requesting party, and neither choice will inject unnecessary time and cost into litigation.

In order to determine what constitutes an appropriate production of records as they are kept in the “usual course of business,” it is first necessary to define that term. To begin with, not every litigant is a business or functions in the manner of a business. Black’s Law Dictionary defines a business as “[a] commercial enterprise carried on for profit; a particular occupation or employment habitually engaged in for livelihood or gain.” Only as a secondary definition, business constitutes “[b]y extension, transactions or matters of a noncommercial nature.”
[…]
By rough analogy to Rule 803(6), the option of producing documents “as they are kept in the usual course of business” under Rule 34 requires the producing party to meet either of two tests. First, this option is available to commercial enterprises or entities that function in the manner of commercial enterprises. Second, this option may also apply to records resulting from “regularly conducted activity.” Where a producing party’s activities are not “routine and repetitive” such as to require a well-organized record-keeping system — in other words when the records do not result from an “ordinary course of business” — the party must produce documents according to the sole remaining option under Rule 34: “organize[d] and label[ed] . . . to correspond to the categories in the request.”

The logic of Rule 34 supports this limitation. When records do not result from “routine and repetitive” activity, there is no incentive to organize them in a predictable system. The purpose of the Rule is to facilitate production of records in a useful manner and to minimize discovery costs; thus it is reasonable to require litigants who do not create and/or maintain records in a “routine and repetitive” manner to organize the records in a usable 55 fashion prior to producing them.

However conducting an investigation — which is by its very nature not routine or repetitive — cannot fall within the scope of the “usual course of business.” While the SEC routinely collects and maintains regulatory submissions such 10-K reports, in its investigative capacity the agency conducts tailored probes of a company or an industry, requiring the gathering of records from diverse sources. Many if not most of the 1.7 million documents in the SEC production here were likely collected in the agency’s investigatory role. Thus it is no surprise that the complete collection is maintained as it was collected — in large disorderly databases. The documents can only be provided in a useful manner if the agency organizes or labels them to correspond to each demand. Based on the SEC’s submission, it appears that this has already been done through the lead litigation attorney’s creation of the 175-plus file folders at issue.

Therefore, the SEC must respond to [Requesting Party’s] request for production by providing him with the documents that respond to those requests. [Requesting Party] has not requested the SEC file folders as such, but many of them correlate with the factual allegations in the Complaint, the subjects of the requests. Thus, to the extent that one or more of the 175 folders assembled by the SEC’s attorneys constitute the complete set of documents relevant to a particular request…

SEC v. Collins & Aikman Corp., 2009 U.S. Dist. LEXIS 3367 (S.D.N.Y. Jan. 13, 2009)(internal citations removed).

Posted in 2nd Circuit, Case Blurbs, Duty to Produce, Form of Production, In the Ordinary Course of Business, Judge Shira A. Scheindlin, S.D.N.Y | Leave a Comment »

Case Blurb: Ahner; Objection on Relevance due to Form of Production Requested not Valid

Posted by rjbiii on October 17, 2008

[I]t is not a valid ground for objection that relevant, non-privileged, electronic data can be produced in paper form, when the requesting party has specified production in an electronic format.

Auto Club Family Ins. Co. v. Ahner, 2007 WL 2480322 at *4 (E.D.La. Aug. 29, 2007) (internal citations removed)

Posted in 5th Circuit, Case Blurbs, E.D. La., Form of Production, Magistrate Judge Joseph C. Wilkinson Jr., Relevance | Leave a Comment »

Case Blurb: Ahner; Production of Paper Version does not necessarilly Preclude Requirement to Produce ESI

Posted by rjbiii on October 17, 2008

“The mere fact that information which as a matter of ordinary course of one’s business is electronically stored has been produced in functional equivalent, such as through hard copy, does not in and of itself excuse a party from producing the requested information in electronic form.” Cornell Research Found., Inc. v. Hewlett Packard Co., 223 F.R.D. 55, 73 (N.D.N.Y.2003) (citing Anti-Monopoly, Inc. v. Hasbro, Inc., No. 94CIV.2120, 1995 WL 649934, at *2 (S.D.N.Y. Nov. 3, 1995) (citing 8A Wright, Miller & Marcus, Federal Practice and Procedure § 2218, at 452 & n. 13)). [Producing Party] has not provided any evidence to support its assertion that the authenticity of its engineering opinions, which were issued in final form this case in January, March and July 2006, might be compromised if the [Requesting Party] were permitted to discover its electronic files. Thus, Rule 45(d)(1)(C) does not relieve [Producing Party] of its obligation to respond to the subpoena duces tecum by producing its relevant, non-privileged, electronically stored information in the requested electronic form.

Auto Club Family Ins. Co. v. Ahner, 2007 WL 2480322 at *2 (E.D.La. Aug. 29, 2007)

Posted in 5th Circuit, Case Blurbs, E.D. La., Form of Production, FRCP 45(d), Magistrate Judge Joseph C. Wilkinson Jr. | Leave a Comment »