Producing discovery as large PDFs is a sure way to end up in motion practice. In White v Wiseman, such a production was called “nonresponsive to the discovery requests.” White v Wiseman, 2020 U.S. Dist. LEXIS 119121, *2 (D. Utah, July 6, 2020).
Here is what happened: the Producing Party produced multiple documents as single PDFS and produced ESI without metadata, thus rendering it impossible to verify the origin of the ESI. White, at *3. After being challenged on their production deficiencies, the producing party made another production on Christmas Eve 2019. White, at *3-4. That production went over like a lump of coal, only including 1,800 out of the original 5,000 records produced, which did not have corresponding bates numbers to the original production. Without matching bates numbers or an index, the requesting party could not identify which records corresponded to the original production. White, at *4-5.
The requesting party brought a motion to compel the producing party to organize and label the documents in their production to correspond to the bates numbers of the original production. The Court granted the motion based on Rule 34(b)(2)(E)(i), which requires a party to produce documents as they are kept in the usual course of business or label them to the corresponding request. The order specifically required the producing party to bates stamp the production with an index that defined newly produced documents, replacement documents, and what documents were responsive to the specific requests for production. White, at *6-7.
Bow Tie Thoughts
Producing documents or ESI as large PDFs is a surefire way to upset a requesting party and judge. Requiring a replacement production is absolutely justified in this situation. What adds uncertainty is the blending the difference between “documents” and “electronically stored information.”
The production of ESI is governed by Rule 34(b)(2)(E)(ii), NOT Rule 34(b)(2)(E)(i). This is important, because in the event a requesting party does not state the form of production of, then the producing party “must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” This requirement recognizes the difference between documents that were printed as paper and records that have only existed electronically. The metadata of ESI allows a party to identify its author, or in the case of email, who sent it, multiple date options, subject line, and other information. These digital fingerprints of metadata can be used in a review application by the requesting party to organize the production by dates, subjects, sender, or any other way they see fit.
Complying with the courts order could have been difficult, depending on the original production. For example, if the original large PDFS were scanned paper, then having to comply with the requirements of Rule 34(b)(2)(E)(i) makes sense. If there is the situation of native files converted to PDFs, matching production numbers could be tricky. If native files were converted in mass to large PDFs, matching that in a review application for a production protocol could be done with a lot of work, but might be a massive headache to pull off. Even then, it might not match.
The preferred situation is to avoid being in this situation. That requires preparing an organized production when responding to request for production, which is a matter of skill, forethought, and preparing discovery productions based on being responsive to the discovery requests.