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This Week in eDiscovery: Preserving Native Document Formats, Sanctions for Failing to Preserve Texts, and More

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Every week, the Array team reviews the latest news and analysis about the evolving field of eDiscovery to bring you the topics and trends you need to know. This week’s post covers the week of June 17-23. Here’s what’s happening.

New Ruling Emphasizes the Importance of File Structure and Formats

A recent ruling underlines just how important production formats can be when producing technical project files.

That’s one of the takeaways from Energy Mgmt. Collab., LLC v. Darwin Tech LLC, et al., a case from U.S. District Court in California covered in Sidley’s Notable Cases and Events in E-Discovery blog.

The defendant was a firm in charge of designing software and hardware for an emergency light-testing system. As part of the suit — which alleges breach of contract, fraud, conversion and unjust enrichment — the plaintiff requested that the firm produce documents related to the work it did.

Specifically, the plaintiff wanted those technical files to be provided in the same way they’re “kept in the ordinary course of business, or organized and labeled to correspond with a particular request.”

The plaintiff didn’t lay out exactly what form the ESI needed to be in, so the defendant had to consider how to produce the files. Absent any specific instructions, the defendants were required to follow Rule 34, which says files must be produced in the form in which they were ordinarily maintained or in a reasonably usable form.

The defendant produced more than 20,000 files, however, since the documents were processed into and produced out of a Relativity database, the file hierarchy was stripped when the native documents were processed for review.

The plaintiff responded by asking for the original native files, so it could open all the necessary files related to the same projects simultaneously, even if that meant it needed to use the same kind of technical software that created them.

The defendant argued that it had already provided metadata about the files and that information was all the plaintiff needed to rebuild the file hierarchy.

The magistrate judge didn’t agree. She said the defendant needed to provide the files in pure native format without processing them with an eDiscovery tool.

Bottom line: It pays to understand exactly how your eDiscovery tools work. Array, for example, has certified Relativity experts who know the capabilities of the software in detail, including how it might remove file structure from technical files. The repercussions in this case don’t appear to be too heavy — the defendant never argued that producing native files would be an undue burden — but you might prefer to avoid the lost time and headache that come with situations like these.

Failure to Save Text Messages Brings Sanctions in Georgia

Here’s another reminder why organizations must have a system for quickly preserving text messages and other electronically stored information, especially when parties have a reasonable expectation of litigation as described in Rule 37.

This time, it’s Maziar v. City of Atlanta, a case where a fired city employee claimed retaliation. For its part, the city said the employee was fired primarily for unprofessional behavior. Kelly Twigger covers it in her latest “Case of the Week” episode.

After the employee was fired, the city put a litigation hold in place and told the woman’s former supervisor to produce any text messages related to the woman and a meeting where she allegedly acted unprofessionally. But nobody actually searched the supervisor’s personal or private phone.

Months passed, and the supervisor left the city’s employ — at which point, the city itself wiped her work phone. A few weeks after that, the former supervisor got a new phone and all the old text messages were destroyed.

These actions led to sanctions against the city. Its motion for summary judgment has been denied, and it has been ordered to pay costs and fees to the defendant. Although the city put a litigation hold in place, steps were not take to actually preserve the device or the messages in question. Especially with cell phones that are ever changing and ever upgraded, the city should have acted swiftly to preserve the data, knowing that litigation was imminent.

Other recent eDiscovery news and headlines:


Julia Helmer; Director, Client Solutions

With a decade of expertise, Julia excels at optimizing enterprise eDiscovery workflows from start to finish. With a deep understanding of how to seamlessly integrate workflows across various eDiscovery platforms, Julia creates tailored solutions for data identification, legal holds, ESI collections, and productions. By harnessing the power of Technology Assisted Review and Analytics, she delivers efficient, cost-effective results that align with best practices and budgetary constraints. Julia’s exceptional communication and customer service skills have fostered strong, lasting relationships with both clients and Project Management teams, enabling her to effectively problem-solve and drive success across numerous projects.

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