Discussing the Form of Production: Always Good at a Meet and Confer

The Defendant in Quality Inv. Props. Santa Clara, LLC v. Serrano Elec., Inc., brought a motion to compel the Plaintiff to “organize, index and label” their production of electronically stored information.  Quality Inv. Props. Santa Clara, LLC v. Serrano Elec., Inc., 2011 U.S. Dist. LEXIS 41006, 1-2 (N.D. Cal. Apr. 11, 2011).

The following outlines the Plaintiff’s collection and production methodology:

Plaintiff created at .ftp site for the Plaintiff’s personnel to deposit their discovery

Plaintiff created folders with names either describing the types of discovery contained in the folder or corresponding to the Defendant’s discovery requests.

The discovery was then downloaded onto Plaintiff’s outside counsel’s computer network in the same order and format as organized on the .ftp site.

The discovery was then processed for production and put on two data disks.

Quality Inv. Props. Santa Clara, LLC, at *1-2.

The two disks contained 82 folders with 11,796 responsive “documents” and no privilege log.  The folders were numbered sequentially.  The discovery encompassed 43,368 .tiff images and an .opt load file. Quality Inv. Props. Santa Clara, LLC, at *2-3.

The Defendant brought a motion to compel to produce the discovery as it is kept in the usual course of business or to label the production to correspond to the categories of the discovery requests.  Quality Inv. Props. Santa Clara, LLC, at *3.

The Defendant also argued that any privileges were waived, because the Plaintiff did not produce a privilege log. Quality Inv. Props. Santa Clara, LLC, at *3.

The same day the Defendant filed their motion, the Plaintiff produced a list matching the Bates Numbers to document categories.  Id.

The Plaintiff produced a 55-page privilege log with nearly 300 entries 10 days after the motion to compel was filed. Id.

Production Requirements under the Federal Rules of Civil Procedure

The production requirements on producing electronically stored information can be summarized as follows:

“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.” Fed. R. Civ. P. 34(b)(2)(E)(i).

“[I]f 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.” Fed. R. Civ. P. 34(b)(2)(E)(ii).

Quality Inv. Props. Santa Clara, LLC, at *4.

Standards for Waiving Privilege Analysis 

Courts review four factors in determining whether the failure to produce a privilege log results in a waiver of any privileges:

1. The degree to which the objection or assertion of privilege enables the litigant seeking discovery and the court to evaluate whether each of the withheld documents is privileged (where providing particulars typically contained in a privilege log is presumptively sufficient and boilerplate objections are presumptively insufficient);
2. The timeliness of the objection and accompanying information about the withheld documents (where service within 30 days, as a default guideline, is sufficient); 
3. The magnitude of the document production;
4. Other particular circumstances of the litigation that make responding to discovery unusually easy (such as, here, the fact that many of the same documents were the subject of discovery in an earlier action) or unusually hard. 

Quality Inv. Props. Santa Clara, LLC, at *5.

The Meet & Confer

The parties in this lawsuit filed a report that they had met and conferred pursuant to Federal Rule of Procedure Rule 26(f).  However, no report was ever filed with the Court.  During oral argument, one party admitted they never met and conferred over the form of production of electronically stored information.  Quality Inv. Props. Santa Clara, LLC, at *6-7.

The Court described this failure as follows:

Neither of the parties in this action fulfilled its Rule 26(f) obligation to meet and confer about a discovery plan. As a result, Quality has now produced documents in a form that Serrano claims is not compatible with Serrano’s system for reviewing documents. Had there been a candid discussion about the form in which documents should be produced, the events precipitating this motion could have been avoided. Instead, rather than the parties each controlling its own fate by negotiating an agreement each could live with, the court must now decide which one of the parties will invest further resources to correct these mistakes.

Quality Inv. Props. Santa Clara, LLC, at *7.

The Form of Production Dispute

The Defendants argued that the Plaintiffs failed to comply with Federal Rule of Civil Procedure Rule 34 because the Plaintiffs failed to 1) produce the ESI as it was kept in the usual course of business or 2) organize and label the production to correspond to the categories in the request. Quality Inv. Props. Santa Clara, LLC, at *8.

The Plaintiffs argued that their production complied with Federal Rule of Civil Procedure Rule 34, because their “ESI” was stored “electronically” and produced “electronically” as .tiff images. Quality Inv. Props. Santa Clara, LLC, at *8.

The Court quickly disregarded this argument.  First, the Court noted that the process to convert ESI to tiff images and load files “makes clear that the documents were not kept in those formats in the usual course of business.”  Quality Inv. Props. Santa Clara, LLC, at *8.

The Court also noted that the Plaintiff’s “declarants have presented no information establishing that the metadata that Quality provided would identify from whose files a given document was collected.” Quality Inv. Props. Santa Clara, LLC, at *8.

The Court also found that the supplemental list produced by the Plaintiffs was “sufficiently specific,” thus the Plaintiff had failed to “organize and label” their production. Quality Inv. Props. Santa Clara, LLC, at *8-9.

The Court found that the Plaintiff failed to meet with Federal Rule of Civil Procedure Rule 34.  The Plaintiff was ordered to re-produce its production “consistent with a specification agreed upon by the parties.”  Quality Inv. Props. Santa Clara, LLC, at *9.

In a footnote, the Court recommended two individuals meet, presumably litigation support professionals, without the lawyers present, to discuss how the production could be loaded into the Defendant’s litigation support database and searched. Quality Inv. Props. Santa Clara, LLC, at *9-10, fn 16.

In the event the parties could not agree on a production protocol, the Plaintiff was ordered to identify the categories in each discovery request the production was responsive to in their re-production. Quality Inv. Props. Santa Clara, LLC, at *10.

As to the privilege log, the Court found that between the “unsatisfying” meet and confer and other factors, the delayed privilege log was not unreasonable, thus the privileges were not waived.  Quality Inv. Props. Santa Clara, LLC, at *10-11.

Bow Tie Thoughts

Magistrate Judge Paul Grewal is one of the newest magistrate judges in the Northern District. Quality Inv. Props. Santa Clara, LLC, was a well thought out opinion.  I have high hopes for Silicon Valley producing excellent e-Discovery cases.

e-Discovery cases are not measured in epic opinions over terabytes, but the megabyte cases addressing meet and confers, the form of production and the daily practice of law. Quality Inv. Props. Santa Clara, LLC, highlights all of these issues.

While not addressed, the collection of electronically stored information may or may not have been an issue in this case.  It sounds like the producing party engaged in the self-collection of ESI, possibly without any preservation tools. While doing a byte-for-byte image of computers may turn on the subject matter of a case, there are forensic tools from companies such as PinPoint Labs that allow a custodian to select ESI for preservation.  There are dangers with “self-selection,” because the custodians could be determining what is relevant to a lawsuit and potentially eliminating relevant or responsive information in a production.