There are some big “no-no’s” in civil litigation. Printing ESI before scanning it as a few PDFs totalling 8,000 pages for production is one of them. This case had that bad life choice plus a few more.
The Form of Production
This is a case with multiple defendants getting into a giant discovery fight with plaintiffs over the form of production. One of the media defendants stated the form of production was for the Plaintiff to produce ESI in TIFF image format from native files, along with load files. Blankenship v. Fox News Network, LLC, Civil Action No. 2:19-cv-00236, at *2 (S.D.W. Va. June 14, 2021). Other defendants stated the form of production as native format, with metadata, and with attachments and complete email chains. Blankenship, at *8.
The Production…did not follow any of the Instructions
The Plaintiff opted to not follow the stated form of production instructions and instead printed ESI as hard copy and then scanned as PDF files that stripped any metadata from the production. Blankenship, at *3.
The Meet & Confer Over the Production
The Requesting Party-Defendant attempted a meet and confer over the inadequate and non-conforming production. The Defendant argued the plaintiff appeared to have not completed a search and collection of ESI. Moreover, the Defendant demanded the Plaintiff state a date certain for completing their production. The Plaintiff stated in an email they would complete their production within 17 days. Blankenship, at *4.
Five days after the claimed production date passed, the Defendant learned the Plaintiff had not yet started their search or retained an eDiscovery vendor. Plaintiff offered their “assurance” they were working on “the ESI issue.” Id.
The Motion to Compel
The Defendant brought a motion to compel for the Defendant to complete their production by the 2020. Adding sauce for the goose, the Plaintiff had been aggressive in their discovery against the defendants, having brought motions to compel within a month of discovery deadlines and claiming “conducting searches of email accounts” for responsive documents “should be simple and straightforward.” Blankenship, at *6.
The other defendants joined in the motion to compel, adding on to the list of grievances that the Plaintiffs did not label what they production was responsive to and that the Plaintiffs should be compelled to conduct a reasonable search and collection of ESI by a date certain. Blankenship, at *8.
Defendant’s Opposition to the Motion to Compel
The Plaintiff stated in their “preliminary” response to the motion to compel that they had retained an ESI vendor to search for and collect ESI from the Plaintiff and from third parties and could begin rolling ESI productions in 24 days. Blankenship, at *8-9.
A Very Ticked Off Magistrate Judge
The Magistrate Judge was not thrilled with the Plaintiff’s discovery conduct, from search to producing ESI as scanned PDFs. Blankenship, at *10.
The Magistrate Judge found that the Plaintiff’s attorney “absolutely misrepresented” when the discover would be produced and had “grave concerns” the lawyer had not followed their “ethical obligations” in their representations to opposing counsel. Blankenship, at *11-12. It should be no surprise that the Court ordered the Plaintiff to identify the specific requests their discovery was responsive to and for the Defendants to prove up their costs for the Plaintiff.
Off to the District Court Judge
The Plaintiff naturally challenged the Magistrate Judge’s order and findings, which Senior District Judge John T. Copenhaver, Jr. upheld. Blankenship, at *24-25.
Bow Tie Thoughts
We have amazing tools to help lawyers solve complex problems. No matter how much “Technology Assisted Review” is brought to bear, there is still the basics of attorneys competently practicing law. Attorneys still have to ensure a litigation hold is enacted and that ESI is collected in a defensible manner. After that, there is search and old fashioned document review for production. All of that is required for lawyers to meet their basic duty of competency in producing ESI.