The Court denied the default sanction, but instead ordered the production in searchable format with metadata. Kwan Software Eng’g, Inc. v. Foray Techs., LLC, 2013 U.S. Dist. LEXIS 144882, 2-5 (N.D. Cal. Oct. 1, 2013).
Part of me would love to see a judicial nuclear strike on a party who produced static images without metadata. It literally would stop everyone who plays production games dead in their tracks from the smoldering wreckage of terminating sanctions. That being said, the proportional response in compelling production as native files is the right call.
The Defendants’ untimely discovery production took place between August to September 2013. The Defendant first produced 28,786 pages; followed by 100,692; and 99,778 pages. The production was in non-searchable TIFFs without any associated metadata. The parties had agreed to produce all ESI in searchable form with associated metadata. Kwan, at *2 fn 2.
The Court explained terminating sanctions should only be done in extreme circumstances. Kwan, at *3, citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). The test for terminating sanctions is:
(1) the public’s interest in expeditious resolution of litigation;
(2) the court’s need to manage its docket;
(3) the risk of prejudice to the other party;
(4) the public policy favoring the disposition of cases on their merits; and
(5) the availability of less drastic sanctions.
Kwan, at *3, citing, Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011).
There is another key factor: the violation must be in bad faith or willful. Kwan, at *4.
The Court ordered a less drastic remedy than default. The Defendant agreed to produce its discovery within a week in a searchable format with metadata. Kwan, at *4-5.
Bow Tie Thoughts
There are far too many attorneys who want to produce as TIFF’s or PDF’s because they:
1) Want a Bates Number on everything;
2) Do not understand control numbers, MD5 Hash Values, or any other way to track native files in a production;
3) Fear native files because they do not understand technology; or
4) Just want to mess with the other side.
The valid exceptions for producing ESI as a static image is when there is information that must be redacted or the odd case where the ESI is an exotic file that has to be translated into a reasonably useable form which is a static image.
Producing native files as TIFFs can have the prejudicial effect of driving up discovery costs. Native files and associated metadata can be analyzed with data clustering, concept searches, visual analytics to see communication patterns or expedited review with predictive coding. Producing native files as TIFFs is like setting off an electro magnetic pulse in a law firm. The advanced search technology is effectively rendered useless, because a TIFF is effectively a non-searchable digital piece of paper. The only effective advanced analytics the lawyers have is to look at the TIFF.
Producing as TIFFs is not done on accident. It is a decision made by a producing party. Could that ever amount to willful conduct to drive up the cost of discovery in violation of Federal Rule of Civil Procedure Rule 1? I think it could, but a Judge would be unlikely to issue a default judgment when the ESI could be produced natively with a sternly worded Court order.
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.