A Plaintiff produced Excel spreadsheets in TIFF format. As one could expect, the Defendant brought a motion to compel in native file format faster than you can sort a column in ascending order. Mitsui O.S.K. Lines, Ltd. v. Seamaster Logistics, Inc., 2011 U.S. Dist. LEXIS 117922 (N.D. Cal. Oct. 12, 2011).
The Court quickly held the Excel spreadsheets be produced in native file format.
Federal Rule of Civil Procedure Rule 34(b)(2)(E)(ii) requires that ESI created in an electronic format must be produced in “the form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Mitsui O.S.K. Lines, Ltd., at *1.
The Court sited the Advisory Committee’s Notes to the 2006 Federal Rules of Civil Procedure Amendments, which states:
The rule does not require a party to produce electronically stored information in the form it which it is ordinarily maintained, as long as it is produced in a reasonably usable form. But the option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation. If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.
Mitsui O.S.K. Lines, Ltd., at *1-2, citing Fed R. Civ. P. 34, Advisory Committee’s Note to the 2006 Amendment.
The Court further stated that form of production cases have held it is “improper to take an electronically searchable document and either destroy or degrade the document’s ability to be searched.” Mitsui O.S.K. Lines, Ltd., at *2.
Based on the above, the Court required the production of the Excel files in native format, maintaining search capabilities, formulae, and other features, intact. Mitsui O.S.K. Lines, Ltd., at *3.
Bow Tie Thoughts
Judge Facciola in Covad Communs. Co. v. Revonet, Inc., stated the following on producing Excel files as non-searchable tiffs:
Understandably, taking an electronic document such as a spreadsheet, printing it, cutting it up, and telling one’s opponent to paste it back together again, when the electronic document can be produced with a keystroke is madness in the world in which we live.
Covad Communs. Co. v. Revonet, Inc., 260 F.R.D. 5, 9 (D.D.C. 2009).
Parties can save time and money by producing Excel files as they are ordinarily maintained. Taking a native file and converting it to a non-searchable file inherently drives up the production costs charged by a service provider. Moreover, it drives up the cost to review the file, because the information is no longer searchable, requiring more time spent reading multiple TIFFs, instead of coded information in a review database.
Excel files, by their very nature of having formulas and other data, have information populated in multiple fields and on different tabs. Converting these files to TIFFs causes an explosion of pagination, where a single file can turn into a several hundred-page TIFF. This creates challenges in document review exactly as Judge Facciola described, where document review regresses to basket weavers putting shredded documents back together again.
Of course, you haven’t even scratched the surface here. An Excel spreadsheet has a maximum of 255 columns and 65,535 rows. I’ve seen Excel files rendered to TIFF where someone had gone to the last cell at column IV, row 65535, and entered a period. Now, instead of a nice small spreadsheet, you have a 35,000-page monster multi-page TIFF loaded up with blank grid pages. (Fortunately, judges are now cracking down on stunts like this.)
I sure wish every judge would follow Judge Facciola’s lead here (as with so many of his opinions). Maybe someday …
Actually Excel 2007 and higher can now support over 1,000,000 rows and about 16,384 columns. Imagine printing that out! If a person is concerned about being able to bates label, why not reference the excel workbook in a standard load file format with a control ID. And then instead of going to a specific page as Mike Rossander states is different per computer, why not reference a range of cells for Excel?
Well, maybe. If the spreadsheet contents required redaction, conversion to image remains the least-bad option. Redacting “in native” spoliates the document (managable IF you keep detailed records but still difficult to explain) and more importantly, is very, very hard to do properly. If done improperly, the redaction can be undone, exposing your privileged data.
You can also have problems when a spreadsheet is linked to other documents. Producing in native retains the formula dependencies but 1) the reader may not have the other documents that the formula is attempting to reference if those other workbooks were not responsive to the request or 2) the reader may have them but they will not be in the path-directory expected by the formula. While MS Excel includes a pop-up box asking if you want to refresh the links on opening (don’t), almost any editing of the document including double-clicking a cell to see the formula can retrigger it. It’s very easy to ruin the document. An image copy may be harder to search or filter but if properly created it is a guaranteed true copy of the document as it was seen by the original user.
The third scenario I’ve seen is a requestor demanding Bates numbering. Sorry, but that can’t be done in native. If you ask for page-level Bates numbering, you are implicitly asking for an image conversion. If you want native, you’re stuck with whatever numbering and pagination the application provides. And when you try to talk about the ‘smoking gun’ you found on page 128, it may not be anywhere near page 128 when anyone else opens the document. (Remember that in Microsoft Office applications, pagination is affected by your print driver settings.)
If the conversion to image is purely for the purpose of frustrating one’s opponent, that is inappropriate. Some conversions remain necessary, however, and are created in good-faith. And if you did it to yourself through a poorly considered request, I have little sympathy.
Mike:
Good points, but redaction *always* changes the evidence, even in paper or image productions. That’s the whole point of redaction. It’s not spoliation when the fact of redaction is disclosed and the grounds for same are duly logged and produced.
Page level Bates numbering is largely a red herring issue in spreadsheet production. Spreadsheets aren’t “paged” documents;, they routinely breach the bounds of a printed page horizontally and vertically. Moreover, they can be more easily and precisely referenced internally by their cell (row and column) designations.
Craig Ball