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.

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.

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.

Clifford F. Shnier

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