Identifying Logical Document Breaks in Discovery Order

There are many businesses where individuals print “documents” as paper. These printed documents often are scanned as a PDFs during discovery. It is a big “no-no” to produce PDFs with thousands of pages of scanned images. Judges have ruled that producing ESI documents as massive PDFs [without bates numbers to boot] is “inconceivable that experienced counsel would expect that” to be in a reasonable useable form. See, Song v. Drenberg, Case No.18-cv-06283-LHK (VKD), at *8-9 (N.D. Cal. Oct. 11, 2019) and Venture CorpvBarrett, No. 5:13-cv-03384-PSG, 2014 WL 5305575 at *3 (N.D. Cal. Oct. 16, 2014).

It is difficult to imagine a business where the ordinary course of business is maintaining responsive discovery as jumbled 100+ page PDFs. If anyone has had to review such a mess, you know it is a royal pain in identifying logical document breaks, not to mention where attachments begin and end.

In an incredibly detailed discovery order by Judge Maria A. Audero, the issue of document unitization was baked into the court order:

4.2. Document Unitization: If hard copy documents are scanned into an electronic form, the unitization of the document and any attachments shall be maintained as it existed in the original when creating the image file. For documents that contain fixed notes, the pages will be scanned with the notes and those pages will be treated as part of the same document. The relationship of documents in a document collection (e.g., cover letter and enclosures, email and attachments, binder containing multiple documents, or other documents where a parent-child relationship exists between the documents) shall be maintained through the scanning or conversion process.

Core Distribution v. Oxgord Inc., No. 2:21-cv-01635-JAK (MAAx), 2021 U.S. Dist. LEXIS 146049, at *6 (C.D. Cal. Aug. 2, 2021).

Since the days of document repositories going back to the 1980s, attorneys would go to civil litigation equivalent of Dante’s Inferno, identify documents they wanted scanned, and place paperclips (or binder clips) on pages to be scanned. This time overlapped with the first document review applications designed to make reviewing scanned documents easier, so lawyers would not have to spend days on end without sunlight going through boxes of printed documents. Records were scanned in for decades with the logical document breaks, so lawyers could review a three page letter instead of slogging through thousands of pages and making notes where “documents” began and ended.

Whether it was Judge Audero or attorneys for one of the parties, someone understood the importance of identifying logical document unitization for reviewing discovery. Plus, no one wants to have depositions with exhibits that are 1,000 pages long with attorneys fumbling over what page is being discussed by a witness. Document unitization saves time and furthers the goals of FRCP Rule 1 for the just, and inexpensive, resolution of cases.

If someone ends up with the unfortunate situation of getting a 1,000 page PDF, there are ediscovery products that have document unitization tools. Everlaw has one that is easy to use, especially if you spent a childhood playing video games. While identifying document breaks does not bring back memories of Frogger or Missile Command, it can empower lawyers to convert a large PDF into useable records for responding to discovery requests.