Replead for Participation and Another Case Showing the Need for Better Education

Once again I call upon experts in the field who hear this message to email me about participation in a new online mass collaborative attempt to rescue the legal profession from the throes of e-discovery confusion.

If you are an e-discovery educator, expert, or vendor, and think you might be interested in collaboration, please contact me now. Although I do not need firm commitments right away, and you will be under no particular deadline to produce, I would like to have a sense of who is interested in participating in the next three to six months. The program will begin soon, but you can join in at your own schedule. As I said last week:

I am ready to start the adventure, but I tarry a tad longer to invite other e-discovery educators to begin the journey with me. …  All e-discovery vendors, and non-profit groups too, are invited to contact me now, today, this week, this weekend by email to learn more about the project and how you can collaborate. … If you have information, products, services, or special skills that might help remove the blinders of science from the eyes of lady justice, that might help the profession to meet the challenges of e-discovery, and you have the capacity to put together a high quality teaching program to transmit this knowledge, this wisdom, then contact me at Ralph.Losey@gmail.com. I’ll spell out the details of what I plan to do and how you can contribute. Together we can help make next year’s Kroll Report different.

One more request, if you are an expert in the field, such as an attorney or small organization, but are not a vendor with the capacity to put together a quality training program, and if you enjoy teaching and interacting with students of e-discovery, then I have a place for you too. We are looking for qualified instructors who can give some time each week to respond to students by email. Again, if you are qualified as an expert and educator, and have interest in helping out in this way, please contact me and I’ll tell you more about what I have in mind. I’ll give you a sneak preview of what comes next, the cyber law school of tomorrow, open to all, collaborative, and virtually free.

Last week I looked at the annual Kroll report showing case after case of lawyer mistakes and sanctions. I noted how this has been going on for years, and that it seemed to be getting worse, not better. I asked if we (the legal profession) are doomed to repeat the same mistakes over and over again, like Bill Murray in the movie Groundhog Day? Will the Kroll report of 2020 again recount the growing number of cases where counsel failed to properly handle electronic evidence? I asked how we could break out of this cycle. I suggested that the answer lies in a new kind of education program where we offer “deep, intensive training; law school level, challenging training; … a program of fifty to a hundred hours or more, not just an afternoon CLE.” Here, by the way, are some of the books behind the ideas of how the program can work.

In my last blog I also asked who was to blame? Because only by understanding causation can we break free, can we step out of the line of falling dominos. I postulated one answer, that it is the fault of technology, not the legal profession at large. We are just struggling to cope with the technology genie that irresponsible scientists have let out of the bottle: the information explosion and chaotic complexity of writings and electronic evidence. I invoked Thomas Dolby’s iconic song, Blinded With Science. Craig Ball left a comment disagreeing, as he thinks it is our own darn fault, that we just need to try harder. Of course, he is correct, at least in part. We all should have a sign on our desk that says the Buck Stops Here.

I also pointed the finger of blame on our educational efforts to date. We have failed to teach the profession how to cope with technology in general and e-discovery in particular. I noted that only a handful of law schools even offer a two-credit course on the subject and that most law firms lack the institutional knowledge to teach internally. I also complained about the superficial efforts of short, or even day-long CLEs. On that finger of blame Craig seems to agree, and indeed, he is helping out on my new project. Many other educators and vendors have also stepped up to the plate. Will you?

At the end of my blog last week I said that I was ready to do something, to move from talk to action. I said I had a plan and was getting ready to shake things up, hopefully in a good way. I mentioned wikinomics, in the sense of mass collaboration, and asked experts, educators, and vendors to contact me who might be interested in helping out on a plan for better e-discovery education. I said I would spell out the whole story next week. I asked people to contact me to let me know if they were interested in the project. The response has been very positive and things are moving fast now. But, this is the holidays, and I do not want to rush. Plus, I’m already changing and adding to the program based on some great suggestions I have already received. There is wisdom in the group that can far exceed any one person.

So, despite what I said last week, I am going to delay the formal announcement a little bit longer. This week will instead focus  on yet another case showing counsel goof-ups and misunderstandings. I have been working on the project for years now, so another week will not make any difference. Just know that something new is on the way, something that I think you will find good and want to take part in. It’s not exactly Santa, but it’s certainly better than a kick in the pants.

In the meantime, here is the new blooper-of-the-week-case involving one of my favorite issues, form of production.

Jannx Medical Systems Inc. v. The Methodist Hospitals Inc.

Plaintiff’s counsel in a decision coming out of Indiana appears to have been in dire need of e-discovery education. Magistrate Judge Paul R. Cherry obliged in a short, well-written opinion. Jannx Medical Systems Inc. v. The Methodist Hospitals Inc., 2010 U.S. Dist. LEXIS 122574, (N.D. Ind., November 17, 2010) (copy attached). He explained the law concerning form of ESI production to plaintiff’s counsel. Judge Cherry also taxed the plaintiff with attorney fees for the trouble that plaintiff’s counsel had put to the defendant, Methodist Hospitals, and their attorneys. The lessons in this case not only concern the new Rules, specifically Rule 34(b)(2)(E), but also the perennial lesson of cooperation. Both subjects are at the core of the new education program I have developed.

Judge Cherry starts his opinion by chastising all counsel for not following the local rules requiring a certification by counsel of their good faith attempt to resolve the discovery dispute.  Note that Rule 37(a)(1) states that in any Motion for an Order Compelling Disclosure or Discovery:

The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.

The court’s local rule 37.1 required a specific certification to accompany the motion and provide detailed information of the good faith efforts. In Jannx both sides filed discovery motions and both sides forgot to certify their good faith efforts as described. Many courts would have just denied all motions on that grounds and made them refile. But Judge Cherry did not do so, instead he looked carefully at the motions and attachments. He found for himself that good faith efforts appear to have been made before filing the motions, and so he charitably went on to address the merits.

The defendants had filed a motion to compel production and more complete responses to Interrogatories. The plaintiff filed its own counter-motion for protective order. As to the Rogs dispute, the plaintiff just filed standard form objections, which the court did not accept, and instead ordered full responses. More interesting is the motion to compel production of ESI. Here the defendants had made a request for production that included ESI, but had not specified form of production. One wonders if this whole dispute could have been avoided by specification of a native form of production? In any event, defendants did not do that, so Rule 34 alone governed, which states:

(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;

(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and

(iii) A party need not produce the same electronically stored information in more than one form.

Rule 34(b)(2)(E), Federal Rules of Civil Procedure.

The plaintiff decided to produce the ESI requested in PDF form. That alone did not bother the defendants. No, what they complained about was the type of PDF files produced. The plaintiff produced PDF files that had been stripped of the indexing metadata. They produced totally flat dumb files, instead of robust, metadata filled searchable files. Apparently someone here did not understand the difference, nor understand what Rule 34 means when it says: “reasonably usable form.” As we will see, all they had to do was look at the rule comments, but I get ahead of myself.

Plaintiff’s counsel here seems to have only been comfortable with paper. The stripped PDF files they produced were equivalent to paper. The trouble is, the evidence at issue here was not paper evidence, it was fully alive, metadata filled computer data. By stripping it down, and reducing to the electronic equivalent of paper, they changed the evidence. They did not seem to understand that. Instead they tried to justify their metadata fearing ways by a strained interpretation of Rule 34 that only succeeded at irritating the magistrate and causing the judge to throw the attorney fees book at them.

Here is how Judge Cherry explained it:

Plaintiff has produced some documents in .pdf format. However, Defendants contend that the information contained in these documents is normally maintained in a fully searchable and manipulable electronic format, and that providing them only in .pdf form destroys Defendants’ ability to effectively search or analyze the information. Defendants are unable to determine which of the produced documents are associated with particular maintenance transactions, how the produced reports were generated, or even what data the reports rely upon.

Plaintiff argues that producing documents in .pdf format was in compliance with Rule 34 because Defendants did not specify the exact form in which the documents were to be produced. …

Next, Plaintiff cites to The Scotts Company LLC v. Liberty Mutual Insurance Company, emphasizing the court’s statement that it is an incorrect statement of the law to say that “a party’s discovery obligations are not satisfied by the production of computerized information in a hard copy format” such as .pdf. 2007 WL 1723509, *4 (S.D.Ohio June 12, 2007). Although the Court agrees that there are circumstances in which .pdf format may satisfy discovery obligations, Plaintiff ignored the rest of the Southern District of Ohio’s decision discussing the Advisory Committee Note on the 2006 Amendments, which address circumstances when a party’s selected form of production does not comply with the requirement to be “reasonably usable.” Id. The court cites the Note, reminding the parties that “[i]f 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.” Id. (quoting Fed. R. Civ. P. 34 Advisory Committee’s Note on 2006 Amendments). This Court notes its disapproval of Plaintiff’s mischaracterization of case law.

Plaintiff does not argue that production of electronic database data in .pdf form maintains for Defendants the ability to search the information electronically. Instead, it argues that because Defendants did not specify a particular electronic format for production in their initial requests, they are now stuck with the form in which Plaintiff chose to produce the information. The Advisory Committee cautioned that

the 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.

Fed. R. Civ. P. 34 Advisory Committee’s Note on the 2006 Amendments. It appears that this is exactly what Plaintiff has done in this case. Therefore, the Court grants Defendants’ Motion to Compel to the extent that Defendants request that Plaintiff produce responsive information in an electronic database format that allows the information to be reasonably usable, i.e., fully searchable and manipulable, with the connections between data fields intact.

Conclusion

If the attorneys in Jannx Medical Systems had had a better understanding of the law and the special need for cooperation in electronic discovery issues, this dispute would not have arisen. It was totally unnecessary. Although most of the blame here lies on plaintiff’s counsel, the defense might have mitigated matters by specifically requesting native format production, or as Rule 34 puts it, the “form or forms in which it is ordinarily maintained.” They could have addressed the need for full metadata in the original language of the Request for Production. Still, they may have had their reasons for not doing so. Perhaps it involved a home-made database that they were concerned they could not read. There may have been other reasons. But the blame here on plaintiff’s counsel was clear and Judge Cherry was right to tax fees.

Plaintiff’s counsel should have understood the comments to the rule and the need for searchability in an electronic file production like this. I suspect counsel simply did not understand metadata. Most attorneys do not. Many attorneys think that they have a right to strip metadata from a document production. Some even think they have an ethical duty to do so, as they are confused by the contradictory State Bar opinions on protecting confidential information. They do not understand the difference between metadata in communications with opposing counsel and metadata in the client’s records, metadata in the evidence. They do not grasp that metadata is part of the evidence, part of the original document, in the same way that printing on the backside of a paper document is part of the document. They do not understand that you can no more delete metadata from evidence, and refuse to produce it, than you can refuse to produce the reverse side of a two-page paper document. With instruction and proper training, attorneys will get it. They will not make this mistake. They will avoid this waste of time, avoid this taxation of fees against their client, avoid this pointless aggrivation of the judge.

Jannx Medical Systems is just one more in a long line of cases where attorneys cause unnecessary disputes and problem because they do not understand the new technologies and new evidence. This is just a small case. It will never make Kroll’s annual report next year. But I submit that there are hundreds more just like it that never see the light of day.

Jannx is just the tip of the iceberg and we are all on a litigation ship in the northern seas. Help me to slow this down, to change direction. It is all a matter of understanding. Attorneys are smart, they will get it, if given the right opportunities. Obviously none of the attorneys in Jannx learned e-discovery in law school, and obviously some of them were mighty confused about metadata.

It is easy to attack lawyers for this, but far more helpful to teach instead of preach. That is what I propose to do in the soon to be released e-Discovery Team Training. Look for a full announcement soon. In the meantime, if you’re a teach, put me in reach; if you’re a vendor, be an email sender. To all others, I’ll spare the corny rhymes and just wish you a Happy Holiday!


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