Scotch Tape is Not an Answer

Imagine a job as a critic stuck week after week watching nothing but bad daytime soaps, and then having to write about them. That's what it must be like to be a federal magistrate judge dealing with ongoing e-discovery disputes.

Magistrate Judge John Facciola in the D.C. District has had his share. A drama called Covad Communications Co. v. Revonet Inc. first aired last year and is now into its second season. In our latest episode, counsel for the defendant has told counsel for the plaintiff that if he doesn't like receiving an Excel spreadsheet printed out in hard copy form across hundreds of pages, he can paste them together.

How any lawyer can at this time think a spreadsheet is a proper form of production, or that this is a proper response, is stunning. As Judge Facciola said, "[T]aking 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."

While Covad didn't originally specify the form in which it wanted production, electronically stored information must be produced in "the form or forms in which it is ordinarily maintained or in a reasonably usable form or forms." [Fed. R. Civ. P. 34 (b)(E)(ii).] A do-it-yourself collage falls far short.

We are now three years into the amended Rules of Civil Procedure relating to the discovery of electronically stored information. And considering that this was the umpteenth time the parties had been in front of him with a discovery dispute, it's amazing the judge didn't order counsel locked up. Other judges might not have been so patient.

In Bray & Gillespie Management et al v. Lexington Insurance Co., a decision from last March that's still reverberating, Magistrate Judge Karla Spaulding sanctioned two lawyers and their firm while specifically excluding their client. The motion for sanctions didn't come from the other side. It came from the court. That can definitely ruin your day.

The action commenced in February 2007. B&G was originally represented by Anderson Kill & Olick (AKO), and the partner in charge of the action, "E," moved to Reed Smith in January 2008, taking this case with him. "Partner B" at Reed Smith became involved with this matter by May 2008.

In September 2007, the plantiff's counsel (then AKO) received a request for production from Lexington's lawyers requesting electronically stored information in native format with metadata. Counsel for the plaintiff did not object to the requested form of production, neither then nor at any time up to when they delivered discs purporting to contain responsive ESI on April 30, 2008.

Rule 34(b)(1)(C) provides that the requesting party may specify the form in which it wishes to receive production of electronically stored information, and under Rule 34(b)(2)(D) the responding party may object to the requested form, stating the form it intends to use instead. Rule 34(b)(2)(E) provides that in the absence of any specification of a form of production in the request, the producing party must produce it in the form in which it is ordinarily maintained or in a reasonably usable form.

The committee notes to this rule state:

"[T]he option to produce in a reasonably useable 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."

As Craig Ball commented six months before the amendments to the Rules became effective, "That means no more naked TIFF or PDF files stripped of searchable data layers."[i]

It's hard to decide what's more useless, paper that you're told to paste together yourself, or images with no searchable data, which is what the defendant's attorneys received in the Bray case: TIFF images with no searchable data whatsoever and approximately 100,000 e-mails--plus other electronic files that may or may not have been attachments to the e-mails. Exactly what Rule 34(b), the Rules Commentary and other commentators had all said since early 2006 would no longer be acceptable.

After objecting to this in mid-May, Lexington filed a motion for sanctions against B&G. At that hearing in June 2008, Judge Spaulding heard testimony from Daryl Teshima, a lawyer and electronic discovery consultant, who "testified that the discs contained ESI that had been converted to TIFF images, not scanned copies of paper documents." The difference is easy to spot.

Judge Spaulding found that the plaintiff, through its counsel "deliberately manipulated the electronically stored information in such a way as to withhold from the defendants the information that had been requested, specifically metadata." Because the problems with the ESI production were caused by the plaintiff, "they will be the ones to bear the burden of whatever cost it takes to get" the ESI produced in a usable format.

That wasn't the end. In October 2008, Judge Spaulding issued two notices: one re-opening the sanctions hearing, and the other directed at Reed Smith and the individual attorneys to afford them "an opportunity ... to [address] why sanctions should not be imposed against ... them as the attorney(s) responsible for the sanctionable conduct." Ouch.

At the re-opened hearing in December 2008, it came out that after the defendant objected to the form of production it had received, the parties talked in May-June 2008. During those discussions, Reed Smith attorney Partner B had "concocted a story about the process that B&G and AKO used to gather the discoverable documents ... that 'B&G printed the documents from B&G's electronic systems. B&G sent the printed documents to Anderson Kill. Anderson Kill scanned the documents to create TIFF images of them ... from which production was then made.'"

This "concocted story" was false. The electronic data hadn't been printed and scanned. It had been processed using Extractiva. The process created the TIFFs, populated the "date," "from," "to," and "title" fields, and captured the full text. It was then loaded into an Introspect database. Both Extractiva and Introspect were tried and true technology, quite acceptable and current for 2007.

Any firm authorizing e-discovery through the old inefficient print-then-scan way by the middle of this decade would be guilty of malpractice. Anderson Kill didn't do that in 2007, and had Reed Smith been in charge of the case then, they would not have done it either, because they have qualified practice management personnel who know better.

In any event, somehow the data produced to the defendants on April 30, 2008 consisted of the nice clear TIFF images that would result from Extractiva but accompanied by none of the searchable data that would make them useable. How this happened is unclear; normally, creating a production set from Introspect requires conscious human intervention to select which fields of data get exported and which do not.

"[T]he false explanation [Partner B] gave regarding how ESI had been collected was based, at best, on willful blindness which unreasonably prolonged and multiplied the proceedings regarding the ESI discovery dispute."

"Willful blindness" meant the lawyer was getting the benefit of the doubt. In his defense, Partner B testified that he had erroneously assumed the plaintiff's electronic data had been printed and scanned to TIFF because he had heard about summer interns standing in front of scanners, and he incorrectly leaped to this conclusion.

The result: Reed Smith and the individual attorneys were ordered to pay the sanctions themselves, and the judge specifically excused their client B&G from any liability.

Lessons to be learned from this?

1. If you don't know, ask. In a large firm or sizeable corporate legal department, you won't even need to ask someone external who might charge fees. It will have practice management and litigation support personnel who know this stuff cold. If you're in an organization that doesn't have these internal resources, there are plenty of consultants to help you.

2. If electronic discovery is not your forte, whatever you think you know may not be correct. You may vaguely recall having heard that electronic data was made ready for review and production by printing it and then scanning it. You might think you heard this two years ago rather than twelve years ago. Technology changes fast.

3. Never make an assertion to the court--or to opposing counsel-- if you do not have a solid good faith belief in it when you assert it. Suppositions and assumptions are unacceptable. Never put yourself in a position of having to explain yourself starting with the words "I assumed."

4. A little knowledge is a dangerous thing. This case shows how many lawyers know just enough about electronic discovery, in snippets and disconnected fragments, to be dangerous--mostly to themselves.

5. Here's another reason for inside counsel to assume greater control over e-discovery. The judge clearly excused the corporate client from the misdeeds of its counsel, but this is still an episode that didn't do that client any good. There's a growing trend to move some stages of electronic discovery, particularly the earlier ones of proactive information management, identification and collection, inside the corporation. Stories like this, and the ongoing soap opera in the Covad case, add weight and justification to that trend.

Active in e-discovery since the mid-1990s, Cliff Shnier is an attorney and independent electronic discovery consultant based in Scottsdale, Arizona. He has also owned a service bureau and held executive positions with national e-discovery providers. A graduate of the University of Toronto Faculty of Law, Cliff actively practiced law for 11 years and has extensive courtroom experience litigating complex commercial matters, as well as negligence and criminal cases. E-mail him at cliff@cliffshnier.com.


[i] Craig Ball, The Train's About to Depart, Law Technology News, June 2006, at 44. If you do not know the meaning of the expression 'naked TIFF', it is strongly recommended that you do not try a Google search for it with anyone around who might see your screen when the results show up.

Clifford F. Shnier

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