An eDiscovery Partner Can Help Organize Your Data
During eDiscovery, parties typically expect to receive productions of documents in the form requested or in the form mandated by the Federal Rules of Civil Procedure. Under Rule 34, the documents must be produced “as they are kept in the usual course of business” or they must be organized and labeled. A party violates the rule by providing the requested information as a “document dump:” a large quantity of data transferred in a manner that indicates unfriendliness, hostility, or a legal conflict between the transmitter and the receiver of the information.
In March, a federal judge in Flynn v. Love ruled on such a document dump when the plaintiff responded to a discovery request with “30 bankers boxes full of documents available for Defendants’ review ‘in a storage shed in an unspecified location.’” The pro se plaintiff was responding to a request for documents about related issues from a previous litigation. The defendants filed a motion to compel the plaintiff to identify the documents responsive to their requests and organize them with a labeling system. The judge informed the plaintiff that “discovery is supposed to proceed with minimal involvement of the Court” and “counsel should strive to be cooperative, practical, and sensible.”
The plaintiff failed to comply, producing documents that were compiled as a single PDF file with 2,625 pages. Defendants again filed a motion to compel and a motion for sanctions. The judge ordered the plaintiff to comply within 30 days, granted the motion for sanctions, and ordered the plaintiff to pay the defendants’ reasonable attorneys’ fees.
While 30 boxes of documents in a storage shed is a flagrant example of a document dump, this case provides several reminders of how litigants should organize their documents for potential discovery and illustrates the value of working with an eDiscovery vendor.
Take advantage of cloned discovery
Consulting with an eDiscovery vendor before you produce documents in any matter can save time down the road. The plaintiff in Flynn had already produced these documents in a previous litigation. If the documents had been loaded, reviewed, and produced from an electronic repository designed for eDiscovery work (like Relativity), the migration from the previous case to the current one could have easily been performed with existing or additional Bates stamps with minimal effort, cost, and controversy.
Avoid large file sizes
Submitting a single PDF file is the electronic equivalent of a paper document dump.
Parties must stay compliant by avoiding use of a single PDF file, and with good reason. It is unlikely that the original documents were kept as a single PDF file in the ordinary course of business, and the form lacks the organization and labeling required by Rule 34. In particular, a single PDF file is an inappropriate and impractical form for eDiscovery because of the large file size and lack of metadata.
When a party provides a large, single PDF file as eDiscovery, the party is creating (maybe intentionally) extra work for the opposing party. A large PDF file can be difficult to use since it takes a considerably long time to open and maneuver through, and searching an oversized PDF file can be a slow endeavor, especially if the PDF has not had Optical Character Recognition (OCR) run across the document to make it searchable or if not including a separate extracted text file. The user cannot narrow a search to a specific section of the documents, so every search must involve the PDF file from top to bottom. In addition, pagination in a PDF file can alter the documents from their original form, making it tough to know where a specific document starts and stops.
Include metadata
When eDiscovery is properly collected, processed, and loaded to a review platform, the metadata remains intact. But when emails and spreadsheets are converted to a PDF file as the sole means of collecting the data, the inherent metadata is altered or removed entirely. This conversion causes the loss of functions normally found within the documents. When an email is converted to a PDF file, the user loses the ability to sort, search, and filter the documents by specific key attributes. The user cannot sort chronologically, organize using folders or flags, narrow a search to a specific time frame, extract messages by naming a particular sender and recipient, or filter by subject, sender, or recipient, just to name a few drawbacks. In addition, removing metadata makes it difficult to match an attachment to its corresponding message. For other business documents like spreadsheets, presentations or Word documents, removing metadata can cause loss of all identification, file dates, comments, track changes, and hidden data information.
Like the Flynn case, the judge in Johnson v. Italian Shoemakers, Inc. granted the defendant’s motion for sanctions when the plaintiff produced emails for discovery as a single PDF file. The court stated that a document complies with Rule 34 when it is “searchable and/or sortable by metadata fields.” A single PDF file is not.
Conclusion
A judge may grant sanctions against a party who produces a document dump or doesn’t comply with requested or mandated forms of submission. Parties can stay out of judicial crosshairs by using the tools available for the eDiscovery process as well as negotiating an ESI Protocol that all parties must adhere to throughout the production phase. Producing documents the right way the first time minimizes court time and motion practice as well as reduces cost and increases efficiency for both parties.
If you’re having trouble with eDiscovery for these or other issues, don’t hesitate to reach out to a reputable eDiscovery vendor to help your company interpret, plan and consult on your most challenging projects.
