Everyone got burned in this case, including the Court, the Federal Rules of Civil Procedure and especially Rule 1. Brinckerhoff v. Town of Paradise, 2010 U.S. Dist. LEXIS 126895 (E.D. Cal. Nov. 18, 2010).
On a positive note, the Court was innovative enough to cited Google Maps in a footnote on the distance between the attorneys in San Francisco and the Defendant town. Brinckerhoff, at *8, fn 5.
Brinckerhoff is an employment discrimination case involving a firefighter and local government. The opinion does not start on a good note, with the Court stating:
It must be noted that the parties made review of these motions very difficult for the undersigned in submitting more than one joint statement and failing to cooperate in drafting and submitting the joint statement. From failing to include a table of contents to submitting multiple copies of the same document with the order of contents switched around, to filing numerous extraneous pleadings, both parties have exhibited unprofessional conduct which is unacceptable. In future, the court will decline to hear any discovery matter where the Federal and Local Rules are not strictly followed.
Brinckerhoff at *2-3.
The electronic discovery issues focused on producing in native file format and requesting metadata. Brinckerhoff, at *26-33.
The Plaintiff sought the production of email messages in native file format, the search of two computers and that the Defendants pay for the searches. Brinckerhoff, at *26-27.
The Defendants argued against native file production, because the Plaintiffs did not raise electronic discovery in the Rule 26(f) conference, or their discovery plan or request the email in native file format. Brinckerhoff, at *28-29.
The Court quickly rapped the Defendant on the knuckles, because they also had, “a responsibility to raise the issue at the discovery conference and affirmatively state that there will be no electronic discovery if it so wishes. The parties have a mutual obligation to discuss this issue at the discovery conference.” Brinckerhoff, at *29.
While it is without question parties need to discuss electronically stored information at a Rule 26(f) conference, it is highly problematic for a court to state parties at a meet and confer can agree “there will be no electronic discovery if [a party] so wishes.”
Given the tone of the rest of the opinion, I believe the Court literally did not mean parties can wish away electronically stored information.
The Defendants argued that Aguilar v. Immigration and Customs Enforcement Div. of U.S. Dept. of Homeland Sec., 255 F.R.D. 350 (S.D.N.Y. 2008) stood for the proposition that electronically stored information cannot be compelled without a meeting between the parties. Brinckerhoff, at *29.
The Court expounded that Aguilar was not that simple, because the failure to attempt to resolve ESI disputes without court intervention (i.e., meet and confer), put the moving party in an “uphill battle” to compel ESI. Brinckerhoff, at *29. As the Court explained Aguilar:
In considering the moving party’s request for metadata, the court considered multiple factors, including plaintiffs’ delay in seeking the data in this format until after defendants had already produced it in PDF format, and the failure to discuss the metadata at the Rule 26(f) discovery conference. Id. at 352, 359. The court also contemplated the matter practically in terms of whether defendants’ retracing of their steps would yield useful information beyond what plaintiffs had already received, and how many emails had been produced to determine whether plaintiffs would have a difficult time reviewing and managing them. The conclusion was that defendants would not be required to re-produce the documents in a different format. Id. at 360.
Brinckerhoff, at *29-30.
The Court found that the failure to meet and confer over electronically stored information was not a shield to the Plaintiff’s discovery request. Brinckerhoff, at *31.
The Court ordered the Defendant to produce metadata for all of the Plaintiff’s performance evaluations and emails (presumably the parent and child messages and attachments), because the data would show when the evaluations were created and modified. Brinckerhoff, at *31-32.
The Court noted the Defendants claimed the paper was “only eight to twelve inches thick,” to which the Plaintiff countered it was 4,000 pages. Brinckerhoff, at *31.
As the Court stated, “In any event, plaintiff will not be hard pressed to review them in paper form. Plaintiff has not shown that any other production in electronic format would result in useful information, other than the missing and allegedly destroyed evaluation of plaintiff.” Brinckerhoff, at *31.
The Court further denied the Plaintiff’s request to search the two Defendants’ computers, because “Plaintiff has not provided any specific information which would warrant such a search, especially in light of plaintiff’s failure to previously request electronic data.” Brinckerhoff, at *32-33.
Bow Tie Thoughts
I think this opinion has some major problems. Granted, from the opening, I could see how some of the decisions were reached.
First, a party cannot agree at a 26(f) conference “there will be no electronic discovery if it so wishes.” Brinckerhoff, at *29. That is sort of like saying, “I wish the lawsuit would go away.” At best, parties would be willfully ignoring evidence if they started agreeing to ignore email and other electronically stored information. At worst, willfully ignoring discovery would arguably be malpractice.
Parties should discuss the preservation of electronically stored information, ways to collect the data in a defensible manner and how they wish to review it at a Rule 26(f) meeting. This could simply mean parties are doing targeted collections or printing email messages as searchable PDF’s. However, agreeing “there will be no electronic discovery” is simply not a reality.
The second major issue is leaving electronically stored information converted to 8 to 12 inches of paper. A party cannot degrade the searchable features of electronically stored information. The Court in this case acknowledged this maxim in its discussion of the Rule 34 Advisory Committee notes. (see, Brinckerhoff, at *27-28).
The conversion of ESI to paper runs afoul of not just Rule 34, but Rule 1. Federal Rule of Civil Procedure Rule 1 states that the Federal Rules of Civil Procedure should “be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” Converting email to paper certainly destroys any searchable features and drives up the cost to search what once was searchable in a litigation support database. A simple test to prove this, time how long it takes to find the word “evaluation” in a litigation support database verse digging through 4,000 pieces of paper. Once finished, explain the document review bill to the client.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.