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E-Discovery Update: Pushing Back Against Hardcopy ESI Productions

By Conrad J. Jacoby, Published on October 29, 2008

Over the years, it’s become less and less appropriate to convert discovery materials originally stored in an electronic format into hardcopy (i.e., paper) form for production to a requesting party. The downsides to receiving materials in this format are obvious and well-documented: greatly reduced ability to search the collection, potential loss of helpful (and relevant) metadata, and significantly higher storage costs. That said, in many cases that involve a limited amount of discovery materials, litigation teams continue to exchange electronically stored information (“ESI”) in printed form. After all, for only a few boxes of documents, paper remains fairly manageable. And, if the parties agree to a paper production format - or haven’t specifically requested an alternate format -no further discussion is needed, right?

Unfortunately, even if the requesting party initially agrees to a hardcopy production of ESI, problems arise when certain information in the electronic originals turns out to have particularly importance for proving a point in a case. Tempers can flare even higher in litigation matters where the parties failed to agree in advance to specific production formats, leaving the decision in the hands of the producing party. Given that Federal Rule of Civil Procedure 34(b)(2)(E)(iii) now explicitly protects a producing party from the cost and burden of producing discovery materials more than once (“A party need not produce the same electronically stored information in more than one form”), the effort by a requesting party to obtain the information it needs may be both time-consuming and ultimately frustrating.

Sometimes, however, a second production of electronically stored information is both necessary and appropriate. A recent Kansas case, White v. Graceland College Center For Professional Development & Lifelong Learning, 2008 WL 3271924 (D. Kan. Aug. 7, 2008) provides step by step instruction in the steps that a dissatisfied requesting party can take to seek re-production of materials previously produced in a different format. While this opinion is far from the only authority on how a distressed party can seek this relief, the Court distilled guidance from a number of e-discovery opinions into an easily understood, plain-English discussion. Even without its citations, the opinion nicely demonstrates the preparation required to seek this relief.

1. Be Reasonable

As many judges and commentators have noted, litigation is a “rough and tumble” process. General complaints that the other side isn’t playing fair are heavily discounted. Specific complaints, however, attract greater judicial interest. In Graceland College Center, plaintiff White’s legal team resisted the temptation to complain that an entire production of e-mail messages (and attachments) had been made in a non-searchable hardcopy format whose authenticity could not be verified. Instead, they sought relief for only a small subset of specific documents. Doing so sent several strong signals to the presiding judge.

First, a request for limited relief indicated that the requesting party had done its homework before seeking judicial intervention. Instead of arguing about a (potentially voluminous) production, much of which was likely of limited substantive value, the White legal team prepared a detailed argument as to why it needed information regarding particular pieces of potential evidence. Such advocacy nicely tracks the tests articulated by Fed.R.Civ.P. 26 to assess a producing party’s obligations; a court is entitled to adjust the scope of discovery depending on “the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” Fed.R.Civ.P. 26(B)(2)(c)(iii). A specific showing of document-level importance can go a long way towards tipping the balance in favor of the requesting party.

Second, discovery rules that limit production of materials to a single format were intended to control discovery costs for producing parties, who often must invest significant sums of money to collect, review, and prepare discoverable materials for production. It may be an intellectually simple argument, but citing the cost of preparing discovery materials for a second, different-format, production remains a powerful strategy for resisting such requests for supplemental discovery, especially if the requesting party is dissatisfied with materials it receives pursuant to any prior agreement regarding production format. That same cost argument, however, is undercut when only specific documents (plaintiff in Graceland College Center requested production of 25 documents in native format out of a much larger production) are requested in an alternate format. Such requests, of course, may still place a substantial financial burden on a producing party, but on their face, they appear reasonable, and it will be up to a producing party to demonstrate onerous burden when such requests are made.

2. Explain What’s Missing - And Why It Matters

Judges are appropriately skeptical when a party claims that an entire document collection should be produced a second time—and at the producing party’s expense. A general complaint that ESI was produced without metadata can result in relief for the requesting party (e.g., Williams v. Sprint / United Management Co., 230 F.R.D. 640 (D. Kan. 2005) (spreadsheets lacking file-associated metadata and with locked cells are an incomplete production that must be supplemented), but a moving party makes an even more compelling argument when they can tie specific missing information directly to their legal case. In Graceland College Center, plaintiff’s legal team argued persuasively that the creation time of certain e mail and word processing documents was materially important information that would prove or disprove plaintiff’s unfair termination allegations.

Not all legal teams can demonstrate a similarly close nexus between omitted ESI metadata and their case in chief, of course. However, it may be sufficient to request authenticating information (or a native file production) for one or more important pieces of evidence. This approach may reveal somewhat more about a party’s litigation strategy than they might like, but it’s also a safer approach than building a case around a document that’s ultimately inadmissible as substantive evidence.

3. Demonstrate Disparity Between Litigants’ Discovery Document Collections

One final argument for a litigant dissatisfied with a hardcopy production of formerly digital materials is that of fairness and equity. A party is not required to provide an opponent with the same access to discovery materials they themselves have, but the materials 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)(2)(e)(ii). Comparing paper printouts of electronic documents, whose functionality includes stapling and collating, to original electronic files that can be indexed in situ or imported into a unified search and review platform for issue coding and deeper analysis certainly suggests that one side is holding back significant functionality from the other.

Fairness, too, can be measured by the steps that a producing party takes to generate the discovery materials that are turned over to the requesting party. In Graceland College Center, the court was clearly dissatisfied with the way that the producing party first rendered native file original documents to PDF and then to paper printout—each time shedding more of the useful and informative formatting and utility found in the native originals. Even before the Court quoted the 2006 Advisory Committee Notes to Fed.R.Civ.P. 34, “[An] "option to produce in a reasonably usable 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,” it was apparent that the Court believed some remedial action would be appropriate.

Conclusion

Litigation continues to move out of the era when it may have been appropriate to produce electronically stored information as paper printouts. Questions about document authenticity, not to mention better understanding of how to leverage document-associated metadata, have left fewer and fewer lawyers willing to accept e-mail messages and other electronic documents in this format. Litigants choosing to produce ESI in hardcopy format should be prepared to provide more complete electronic copies of their production, even when it isn’t initially requested by opposing counsel, and even in light of Rule 34 limits on a producing party’s obligations to turn over ESI in more than one format.