German v. Micro Elecs., iNC., is an employment case that involved discovery disputes centering on the Plaintiff’s mitigation of damages, including among other issues, the Plaintiff’s calendars and online activity, including blogging and records-keeping.
The Plaintiff’s attorney claimed the Plaintiff had hardship in responding, because she could not afford to make copies, and her “advancing carpal tunnel [made] it increasingly difficult for her to do anything with her hands or writs, including the clicking of a touchpad on a [laptop], and even the advancing of a screen on her iPad.” German v. Micro Elecs., iNC., 2013 U.S. Dist. LEXIS 4594 (S.D. Ohio Jan. 11, 2013).
The Plaintiff produced information she had copied from blogs and websites, which were then pasted into an email and printed by her attorney. The production was over 100 printed pages. The Court also noted that this production did not accurately identify the source of the text. German, at *18.
The Defendants considered the production deficient, because “it was not guaranteed to capture the original and complete text, formatting, and images of a blog or website.” The Defendants suggested production as PDF’s copies or a production format that was “reviewable and captures the documents in their original format.” German, at *18-19.
The Plaintiff claimed production as PDF screenshots was unduly burdensome and was not required by the Federal Rules of Civil Procedure, because the blog posts and other ESI were “ordinarily maintained” on external servers within multi-tiered web pages. As such, creating PDF’s would be time and cost-intensive, in addition to not being the form they were ordinarily maintained. German, at *19-20.
The Court found the Plaintiff’s claim the production complied with Rule 34(b)(2)(E)(ii) to be “disingenuous,” because “It [was] beyond dispute that the one-hundred-page email document with copied and pasted excerpts from blog and website postings is not in the form “in which it is ordinarily maintained.'” German, at *23, citing Fed. R. Civ. P. 34(b)(2)(E)(ii).
The Court also explained the production was not “in a reasonably usable form,” because the production stripped “the entries of their original and complete text, formatting, images, and likely the source.” Id.
The Court noted N.D. Ohio L.R. App. K, Default Standard for Discovery of Electronically Stored Info. (“E-Discovery”), Standard 6, which states an “acceptable” default production format is a static image, not native format with accompanying metadata. German, at *23-24, citing In re Porsche Cars N. Am., Inc. Plastic Coolant Tubes Prods. Liab. Litig., 279 F.R.D. 447, 449 (S.D. Ohio 2012). (The Court noted that the ESI and metadata needed to be preserved and could be produced if there is a particularized need. German, at *24.)
The Court held the Plaintiff should have produced the online content as static images, because no form of production had been stated by the Defendants. Id.
Bow Tie Thoughts
The Court’s statement regarding N.D. Ohio L.R. App. K, Default Standard for Discovery of Electronically Stored Info. (“E-Discovery”), Standard 6, that static images are a default when no form of production is stated, seems to go against the Federal Rules of Civil Procedure, and a volumes of case law, which state the searchable features of native files cannot be degraded in a discovery production. Moreover, the Court in Porsche stated, “This Court has expressed a preference for the production of electronically stored information in its native format.” In re Porsche Cars N. Am., Inc. Plastic Coolant Tubes Prods. Liab. Litig., 279 F.R.D. 447, 449 (S.D. Ohio 2012).
Granted, static images can be an accepted form of production, as long as the production includes extracted text and the metadata needed for the production to be searchable. TIFF’s, by their very nature, are not searchable. PDF may or may not be, depending on whether it is a searchable PDF. As such, the danger of a “static image” production is it would be as searchable as a paper production, except there are no boxes of paper to keep in a repository.
Producing ESI as static images can also dramatically increase processing costs in converting searchable native files into non-searchable static images.
However, this case was not the “standard” discovery dispute of email from Outlook or Excel files, but online content. These types of cases battling over the production of online content will become the “new normal,” given the use of webmail, social media and the vast use of smartphones and tablets to create content with remote computing systems.
It is very understandable that attorneys may not know how to have this information captured after a decade of case law focused on native files, metadata or maintaining the parent-child relationship between email and attachments.
“Cloud discovery” calls for a collection expert knowledgeable in “cloud” collections, who can develop the most cost and time effective means to capture responsive discovery in a legally defensible manner. It is also entirely possible, depending on the case, that searchable PDF’s would be a reasonably useable form for a cloud discovery production.
There are many tools available to collect cloud discovery, from HTTrack to X1 Discovery to Nextpoint, depending on the nature of the online content. There are many other options as well, which would likely all be cheaper than motion practice over the form of production.
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, the Web 100 from 2017 to 2018, 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.