The E-Discovery Field Guide
Lessons from the Field: Recent Experience Highlights Risks of Deficient Discovery Practices
Applying principles to practice, a recent litigation experience has highlighted several common discovery missteps that were both problematic and easily avoidable—if proper E-Discovery procedures were followed.
In a relatively straightforward business dispute, a central issue in the case was whether the plaintiff had effectively terminated a certain agreement with the defendant. In response to the plaintiff’s discovery requests, the defendant produced over 1,000 pages of documents, including various contracts, invoices, letters, and e-mails. The documents were produced in a single PDF with no bookmarks or other differentiation for where one document ended and the next began. No metadata was produced.
Problem #1: Production Formats and Federal Rule of Civil Procedure 34
Metadata is data about data. For example, in a Word document, the metadata will provide information about the author or creator, creation date, and file name. In an e-mail, the metadata will provide the parties to/from/cc’d on the e-mail, the e-mail subject, and the sent date. All of this metadata may be relevant to the legal issues in a case, and the metadata also serves an additional function: it allows for efficient and organized review of a large document production in a database. However, a PDF production—especially a production where every document is combined into a single PDF—excludes critical (meta)data about the documents and makes searching and sorting electronically impossible. This directly leads to more time, more expense, and a less efficient E-discovery practice. For these reasons, a PDF production without metadata is rarely sufficient—and the receiving party should almost certainly not accept it without a fight.
In addition, a PDF production of electronically stored information (ESI) without metadata also fails to comply with the Federal Rules.
Under Federal Rule of Civil Procedure 34, a party is required to produce documents (1) “as they are kept in the usual course of business or must label them to correspond to the categories in the requests,” Fed. R. Civ. P. 34(b)(2)(E)(i), and (2) if a request does not specify a form of producing ESI, “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). Of course, an opposing party may request a production in PDF format, viewing it as its preferred “reasonably usable form.” See Fed. R. Civ. P. 26(f)(3)(c) & 34(b)(2)(E). If so, the producing party may oblige but, absent such agreement, the format likely is not adequate.
As to the first requirement, a producing party need not organize and label documents kept in the usual course because a business presumably would keep its documents organized in a way that maximizes their usefulness in the day-to-day operations of the business, which will differ from how such documents are requested in discovery. However, a party who opts to produce documents as maintained in the usual course of business must actually produce the documents that way. A production of e-mails in PDF format violates this obligation because a PDF is not how an e-mail is used or kept in the ordinary course —but rather involves converting the e-mail into a non-ordinary course format. See Johnson v. Italian Shoemakers, Inc., 2018 WL 5266853, at *2 (W.D.N.C. Oct. 23, 2018) (awarding sanctions where party continued to produce e-mails as PDFs, “which is not how emails are maintained in the regular course of business”). Further, a single PDF combining multiple separate documents also violates this obligation because such documents were not maintained or compiled that way in the ordinary course of business.
As to the second requirement, a party must provide documents that are searchable and/or sortable by metadata fields. See Spilker v. Medtronic, Inc., 2015 WL 1643258, at *5 (E.D.N.C. April 13, 2015) (party satisfied the requirements by providing “fully searchable documents, sortable by metadata fields, in a folder structure organized by custodian”); Lutzeier v. Citigroup Inc., 2015 WL 430196, at *8 (E.D. Mo. Feb. 2, 2015) (production complied with Rule 34 where it was “in a reasonably usable form or forms and/or the production is searchable, sortable and paired with relevant metadata”); but see Indep. Mktg. Grp., Inc. v. Keen, 2012 WL 207032, at *2 (M.D. Fla. Jan. 24, 2012) (producing party failed to produce documents as ordinarily kept where it printed documents and scanned them, rendering PDF files only). Again, a PDF production fails this obligation by limiting—if not completely eliminating—the ability to search and sort documents, as a proper production format would allow.
Problem #2: Document Manipulation
Another problem with attempting to manually convert a set of native documents into PDFs is the risk of manipulating the metadata—and the actual contents of the documents. Each time a document is opened, the metadata for that document is changed. For example, when an e-mail is forwarded by a party to its attorney and then printed, the metadata of that e-mail is first altered (e.g., adding a new recipient to the e-mail) and then completely lost by the PDF’ing process. The receiving party is entitled to rely on accurate, complete metadata for its review and prosecution of the case, and changes to the metadata create a misleading story of what actually happened. Perhaps even more concerning, the actual substance of documents or e-mails themselves may be changed along the way. For instance, the attorney or paralegal who opens an e-mail may accidently delete part of the e-mail, fail to save an attachment, or add new text to the e-mail. And, as happened in the situation at hand, opening a Word document can change the contents of the document, such as when an automatic date field is updated, changing the critical purported sent date in the header of a letter to a later date reflecting when the letter was accessed in discovery. When that document is later produced as a PDF, the falsely updated date remains, an entirely new document is created, and the original document lost.
Problem #3: Inadequate Document Objections and Waiver
As with many issues, the Federal Rules provide a solution to formatting disputes. Specifically, Rule 34 sets out the rules for requesting and objecting to specific production formats. Rule 34(b)(1) provides that the requesting party “may specify the form or forms in which electronically stored information is to be produced.” Rule 34(b)(2) provides that the response to the request “may state an objection to a requested form for producing electronically stored information,” but if “the responding party objects to a requested form—or if no form was specified in the request—the party must state the form or forms it intends to use.”
Applying these simple rules to the example at hand, a specific, standard production format was requested: native files with all associated metadata. The response, however, made no mention of formatting, failed to object to the request for natives, failed to object to the request for metadata, and failed to state a different form that would be used, including even PDFs. A unilateral decision to ignore a requested ESI format plainly violates Rule 34(b). And, in addition to waiving objections to formats, a violation could also result in an order requiring a reproduction of the documents—and perhaps even sanctions for repeated, egregious violations.
Discovery involves a lot of moving parts and often ESI must be identified, reviewed, and produced in a very short time, but parties still must comply with certain rules and standards. When these obligations are not met, time and money is wasted, unnecessary disputes arise, and the merits of the case can be negatively affected. In today’s ESI-driven world, practices that perhaps were tolerated years ago are no longer enough. Litigants must remain current on discovery rules, practices, and technology. Otherwise they could find themselves at the wrong end of a discovery dispute, with the penalties to show for it.