It concludes with a Court telling a requesting party that requested ESI as native files that it had not “demonstrated an adequate need to have all the ESI produced in native format.”
So much for stating the form of production in your request.
Get ready to pull your hair, because the form of production in this one is a rough ride.
Lawyers Need to Pick the Right Fight
Parties often fight over ESI Protocols for two reasons: 1) There are legitimate issues about custodians to collect, the scope of discovery, search terms and how to address privilege; or 2) The lawyers simply enjoy fighting.
Option 1 is legitimate; Option 2 is not.
The parties in Westdale Recap Props. v. Np/I&G Wakefield Commons had competing protocols that they could never agree on. To their credit, they did agree on a protective order. Westdale Recap Props. v. Np/I&G Wakefield Commons, 2013 U.S. Dist. LEXIS 138537 (E.D.N.C. Sept. 26, 2013).
The Production Dispute
The Producing Party gave the same boilerplate objections to the Plaintiff’s 71 requests for production. This was one sentence asserting objections and another “stating subject to the various objections, relevant, nonprivileged documents would be produced.” Westdale Recap Props., at *5. The Producing Party had objections stated in 18 paragraphs, but did not specifically tailor any objections to the 71 production requests. Id.
70 of the 71 requests for production stated “native file” as the form of production. Id. The Court summarized the Producing Party’s position as follows:
Centro did not address in its stock response the form of production of ESI. In its general objections, however, Centro objected to the extent that the requests seek the production of documents in any particular electronic format or seek ESI not reasonably accessible because of undue burden or cost, or in more than one form. Centro continued that any ESI would be produced in paper printout form or in electronic format as kept and maintained by Centro in the ordinary course of business.
Westdale Recap Props., at *5-6.
Nothing was produced at that time, including a privilege log. Id.
The Producing Party produced 500 pages of documents after the parties agreed on the protective order, followed by a supplemental production of 120 pages and another 24,000 pages after motion practice began. Westdale Recap Props., at *6-7.
Notice that the production is being referred to as “pages.”
Things Get a Little Weird
The Court found, based on the parties’ ESI protocols, good cause for the Producing Party to conduct additional searches for ESI. Westdale Recap Props., at *16.
The order is fairly standard, with the Plaintiff to provide custodians, dates and/or keyword search terms for the Producing Party to search. Westdale Recap Props., at *16-17.
The Plaintiffs wanted ESI in native file format with metadata and not PDF’s because this was a fraud case and metadata was critical. Westdale Recap Props., at *17.
The Court held the following:
Plaintiffs’ contention that production of ESI in the form of searchable PDF files would destroy the associated metadata appears unfounded. While the PDF files would not necessarily contain the metadata, Centro represents that the metadata would remain intact and plaintiffs have not shown to the contrary.
The court also finds that plaintiffs have not, at this point, demonstrated an adequate need to have all the ESI produced in native format. Instead, as Centro argues, production in the form of searchable PDF’s is sufficient. If after reviewing Centro’s production plaintiffs determine that they still seek production of particular ESI in native format, they may file an appropriate motion. See Rule 26(b)(2)(B).
Westdale Recap Props., at *18-19.
Bow Tie Thoughts
Telling a party to live with reviewing PDF’s is like telling someone to fuel their hybrid with coal. While it is clear the Producing Party did only boilerplate objections, it is not clear if the ESI had confidential material that required redaction, thus requiring conversion to PDF’s.
I think the Court was wrong in its decision on the form of production. It only invites more motion practice if not an outright appeal to the District Judge.
The text of Rule 34(b)(1)(C) is clear that the request “may specify the form or forms in which electronically stored information is to be produced.” The Rule does not require a party to demonstrate an adequate need to have all the ESI produced in native format.
The Rules further state the following for the producing party under Rule 34(b)(2)(D):
Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form—or if no form was specified in the request—the party must state the form or forms it intends to use.
(E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:
(i) A party must 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;
(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and
(iii) A party need not produce the same electronically stored information in more than one form.
It is not known how the Plaintiff tried explaining the value of native files, metadata or the need to analyze data in any modern review platform.
Taking native files and converting them to a static image will one 1) drive up processing costs and 2) reduce the ability to use analytical software on the data.
These points cannot be argued to a Court on principle, but judges need expert affidavits to explain why natives are needed.
The only thing worse than producing ESI as static images would be printing ESI as paper, which the Producing Party in this case did initially stated it wanted to do in its general objections (or in electronic format as kept and maintained in the ordinary course of business).
That being said, Rule 34 is clear that the requesting party can state the form of production in their request. They do not need to demonstrate any need for native files, especially if there was not been a specific objection on the form of production because of the need to redact confidential information.
I would encourage a party in this situation to have an expert document the reduced ability (or inability) to see communication patterns, email threading, clustering, predictive coding or any other forms of technology assisted review because of a static image production.
I would supplement the argument with the increased cost of discovery, from converting native files to static images, to increased time to conduct document review by having to look at each file “the old fashioned way” as violating Federal Rule of Civil Procedure Rule 1. This would need real numbers, perhaps evidenced by tracking one day worth of document review over 8 hours and the amount reviewed, compared to using native files in a review application. Show the cost savings vs the cost increase.
Courts want evidence. Provide it to the Judge so they can make an informed decision.
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.