Printing ESI & Scanning It Is Not OK

In Indep. Mktg. Group v. Keen, the Defendant-Requesting Party requested the corporate Plaintiff conduct targeted searches with specific key words on specific custodians on the Plaintiff’s server.  Indep. Mktg. Group v. Keen, 2012 U.S. Dist. LEXIS 7702 (M.D. Fla. Jan. 24, 2012).

The Plaintiff produced one multiple page PDF without any searchable text or metadata.  Indep. Mktg. Group., at *2.

The Defendant requested the Plaintiff do a reasonable search on their server for responsive ESI.  The Plaintiff responded by producing four “poor quality” PDF files without any search text.  The PDF’s were hundreds of pages long.  Indep. Mktg. Group., at *2.

In the course of the discovery dispute, the Plaintiff later refused to re-produce the ESI, claiming a $10,000 production cost was “a prohibitive cost that [Plaintiff] [was] not willing to incur for the production of the documents [Defendants] requested.” Indep. Mktg. Group., at *3.

The Plaintiff later produced disks with files that could not be opened, including system and temporary files. Indep. Mktg. Group., at *3-4, fn 1.

The Court was not thrilled with the Plaintiff’s discovery arguments.  The Plaintiff was a corporation seeking damages in the hundreds of thousands of dollars, plus punitive damages and attorneys fees. Indep. Mktg. Group., at *8.

The Court observed the Plaintiffs production methodology included identifying the responsive ESI on their computer, printing it as paper and then scanning the paper as a non-searchable PDF.  Indep. Mktg. Group., at *4-5.

The Court explained that the Plaintiff did not produce the ESI as it was ordinarily maintained by printing the ESI as paper and then scanning the documents as non-searchable PDF’s.  Indep. Mktg. Group., at *5.  Additionally, the ESI was not produced in a reasonably useable form, because it was non-searchable.  Id.

The Court rejected Plaintiff’s undue burden and cost arguments, noting that there is a presumption that the producing party incurs its own production costs.  Moreover, the Plaintiff never argued the data was not reasonably accessible, which would have been undercut by the fact they could search their computer for responsive ESI that was printed. Indep. Mktg. Group., at *6-7.

The Court ultimately granted to motion to compel, requiring the production to be re-produced in a reasonably useable form and denying an award of attorneys’ fees.

Bow Tie Thoughts

The Federal Rules of Civil Procedure and corresponding case law are abundantly clear that you cannot degrade searchable files.  Printing ESI and then scanning the paper as non-searchable PDF’s is simply not permitted by the discovery rules.

The other issue parties can end up in trouble over is arguing the cost of eDiscovery being unduly burdensome.  In a case worth hundreds of thousands of dollars, where the ESI is reasonably accessible, it is difficult to argue a production cost of $10,000 to be unduly burdensome.  It is more likely a party would spend a significant amount of money in motion practice, with the end result being the same discovery bill if the party simply produced the information correctly the first time.

  1. I was an associate attorney responsible for the ediscovery portion of a trade secret claim. The senior attorneys insisted on following a similar production procedure as discussed in the case, which ended up costing a significant amount more in litigation expenses (motion practice), a dep of our corporate client’s IT personnel, and eventual reproduction in a usable format. That was just dumb strategy.