Thank You Litigation World! This article won the LitigationWorld Pick of the Week award. The editors of LitigationWorld, a free weekly email newsletter for litigators and others who work in litigation, give this award to one article every week that they feel is a must-read for this audience.
A defendant law firm in a fee dispute were ordered to produce specific email communications. The law firm produced email messages in PDF format without attachments. The Defendants claimed in a meet and confer they could not produce attachments from the server, but did not explain why. Skepnek v. Roper & Twardowsky, LLC, 2014 U.S. Dist. LEXIS 11894, at *3-4 (D. Kan. Jan. 27, 2014)
It is never good to have a Judge state, “It is unclear why defendants claim that it is impossible to include every attachment to the produced e-mails but somehow, they are able to produce specific attachments upon request.” Skepnek, at *4.
The Defendants attempted to make the case about the Plaintiffs not stating the form of production in their request.
The Judge did not take the bait and focused on the real issue in the case: the failure to produce the responsive files. Skepnek, at *6.
The Court ordered the production of the attachments, explaining its order as follows:
Defendants offer no excuse for their failure to produce responsive documents except that plaintiffs never requested the documents in native format. Plaintiffs simply want the documents that the court ordered defendants to produce, regardless of format. Because plaintiffs failed to specify a form for producing the electronically stored e-mails and attachments, defendants were required under Rule 34(b)(2)(E)(ii) either to produce the e-mails and attachments in the form (1) in which they are ordinarily maintained, or (2) “in a reasonably usable form.” Defendants failed to produce the attachments at all. Defendants also failed to show PDF format is the form in which their e-mails and attachments are ordinarily maintained.
Skepnek, at *6.
Bow Tie Thoughts
Lawyers often get into trouble with the production of electronically stored information because they do not retain anyone to handle the collection, processing or production of data. Many think their client’s IT staff can somehow “just do it” and avoid the cost of hiring a service provider.
Problem with that logic: You’re doing it wrong.
That is a lot like thinking an auto mechanic charges too much for a break job, so just have your 10 year old do it instead. Since the kid made a great Pinewood Derby car, he should be able to fix the Audi. What could possibly go wrong?
The duty of competency requires lawyers to hire experts to solve technical issues. The collection of ESI and processing are two such areas. Moreover, the technology is constantly advancing. I have watched very impressive product demonstrations of many software applications. Producing email with attachments is something service providers have been doing for over a decade. There are even YouTube videos showing how the technology works. There really is not an excuse from a technological perspective on why email was not produced with attachments in native file format.
There is no excuse for not producing attachments with the emails from a records and information perspective either. I think there is a step missing in this process: a records professional can identify what constitutes a complete record, and the technology expert can figure out how to produce it. The technology expert rarely knows records or archival principles. The services of both could eliminate much uncertainty.
Seems like a no-brainer…