Every lawyer has seen productions of electronically stored information that is one massive PDF comprising hundreds of email and attachments. Many attorneys greet the frustration of having to review such a production in balancing the cost of a motion to compel against the couple of hours it can take to find the logical document breaks in a 1,000 page PDF.
Delux Pub. Charter v. County of Orange, involved a motion to compel the Producing Party (Defendants) to 1) re-produce ESI in TIFF format instead of 15 large PDFs containing approximately 35,000 pages and 2) for future productions to be in TIFF format (and load files for associated metadata). Delux Pub. Charter v. County of Orange, 2021 U.S. Dist. LEXIS 194204 (Aug. 2, 2021).
The Requesting Party (Plaintiffs) stated the form of production for “documents” was as the records were “kept in the ordinary course of business.” They did not address ESI specifically. In a later filed joint report the parties agreed to produce ESI in “a reasonably useable format pursuant to the Federal Rules of Civil Procedure and applicable law.” The report did not define “reasonably useable form.”
The Defendants produced ESI as large PDFs because it was “faster, easier, and less expensive” and could be done with in-house resources. The first PDF production was done before filing the joint report. Moreover, additional productions were done after the first PDF production without any objection from the Requesting Party.
Plaintiffs argued in a supplemental brief that the 15 PDFs comprising 35,000 pages (averaging 2,333.333 pages per PDF) had increased the cost and burden of revise. More importantly, it deprived the Plaintiffs of any metadata of the ESI.
The Court held the Plaintiffs did not meet their burden showing the Defendants failed to comply with the Federal Rules of Civil Procedure. However for future productions, the Court stated the Defendants should re-evaluate if large PDFs are in a reasonably useable form.
The lesson here is if you get a production that does not comply with the stated form of production, object immediately.
Bow Tie Thoughts
Don’t ignore the form of production. State what you want, whether it is native format, TIFF, or PDFs. Object if the producing party produces in a form that is not what you specified.
It is an educated guess that producing parties who produce PDFs that are thousands of pages long do so because they do not know any other way. The idea of having a computer expert collect ESI is alien to them. That does not make the conduct is correct or even in compliance with the Rules, but shows it can be an area for a friendly discussion in a meet and confer.
The elephant in the room when looking at a grab bag of PDFs numbering in the thousands of pages is how to respond. Is the production small enough that the cost of motion practice would outweigh the burden of simply unitizing the documents? If so, objecting to the production in a meet and confer to ensure it does not happen again and just identifying the document breaks is one strategy.
Everlaw has a great “Unionization” tool for identifying logical page breaks in large PDF productions. Thanks to my Gen X childhood playing video games on ColecoVision and Atari, I am pretty quick at logically unitizing 800 to 1200 page PDFs. The workflow is scrolling through the document and clicking where there should be a document break. At the end of the document you click “unitize” to create multiple documents from the PDF. Custom freeform fields can then be used for adding objective coding, since there is no metadata from a large PDF. This work is nowhere as fun as Missile Command or Space Invaders, but the hand and eye coordination training from this games was extremely helpful in finding document breaks. This makes reviewing a production for prospective deposition or motion exhibits significantly easier, instead of a 1,000+ page monstrosity.