Scanning Paper Makes the Production ESI And Not a Document

Anderson Living Trust v. WPX Energy Prod., LLC, 2014 U.S. Dist. LEXIS 31025, 3-4 (D.N.M. Mar. 6, 2014), is a detailed review of production requirements under Federal Rule of Civil Procedure Rule 34(b)(2)(E). The crux of the case centered on whether scanning paper documents to PDF’s made the discovery “electronically stored information.” Moreover, if the paper discovery was now ESI under the Rules, did the producing party have to organize the production under the 34(b)(2)(E)(i)?

The Court found that the parties agreement to produce paper as PDF’s made the discovery ESI. As such, the organization requirement under 34(b)(2)(E)(i) did NOT apply to the former paper production. Rule 34(b)(2)(E)(ii) controlled instead, which requires ESI productions be in the form it is ordinarily maintained or in a reasonable useable form.

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This case highlights the train wreck that can happen from fighting over the form of production. Moreover, the fact the Court found the paper was transmuted to ESI by scanning might be technically correct, but is problematic. Moreover, the case even included a discussion of whether reviewing ESI in a review platform for privileged eliminated the ability to produce ESI as in “the usual course of business,” because it had been in a review platform.

Scanned paper does not OCR 100%. It runs the risk of not being fully searchable. This will depend on the age of the paper, quality of the text on the pages, and the effectiveness of the OCR technology. Luckily, much of the OCR technology today is very good with high accuracy rates. However, OCR in litigation does yet scan handwriting. As such, one would expect scans of non-text paper to require some form of production labeling.

It costs an eDiscovery service provider the same amount to scan a piece of paper for being a PDF or TIFF as it does for printing. However, the printing costs can add more to the total cost than simply OCR-ing a scanned file (I have seen as much as 10 cents a page cost increase).

If the requesting party wants to be difficult, they can request both paper be produced as paper to drive up the production cost for the producing party AND demand the production be organized under 34(b)(2)(E)(i). This would fly in the face of Federal Rule of Civil Procedure Rule 1 to conduct cases in a “just, speedy, and inexpensive determination” of every action when scanned paper can be produced as an image with searchable tect. Furthermore, the requesting party would now have boxes of paper to review, driving up their own billable hours.

Review technology allows anyone conducting document review to “tag” files for production that correspond to discovery requests. Unfortunately, many attorneys do not do this, either based on time constraints, the lack of interest in organizing a production for the opposing party, or they do not know how to.

Personally, I prefer conducting document review to organize what files are responsive to specific requests. Moreover, the time it takes to tag “produce” could be done just as easily as clicking “RFP1” or “RFP4” as tagging options. This makes it easier to perform quality assurance testing and the basic need to look up what files are being produced to a specific request.


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.