Rule 34(b)’s requirement to produce documents in the ordinary course of business has no meaning when it comes to ESI. In this week’s #CaseOfTheWeek, Kelly Twigger discusses the very important issue of manner of production and how courts are addressing parties’ requests to have documents produced by request as well as what that means practically for review and production as well as how to plan for it.
Good morning and welcome to our Case of the Week for November 30, 2021. My name is Kelly Twigger. I am the founder and CEO of eDiscovery Assistant and the principal at ESI Attorneys.
Thanks so much for joining me today or if you’re watching this on our blog, on a delayed broadcast. Thanks so much for being here.
Each week from eDiscovery Assistant Case Law Law database, I select a decision that has really great practical input, and in partnership with ACEDS, we’re delivering this to you live via LinkedIn, YouTube, Twitter and Facebook to provide you some practical guidance on how to be able to plan and prepare effectively for electronic discovery. As we’re finding our basic tenants in the Case of the Week plan, plan, plan, think early about what your sources of ESI are and document, document, document. We’re going to find that all of those really play out in our decision from today.
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All right, let’s dive into this week’s case. This week’s decision comes from a case where we’ve got multiple decisions in eDiscovery Assistant database from the case entitled Profit Point Tax Technologies v. DPAD Group.
This particular decision is from September of 2020, so it is a year old, but it really illustrates manner of production and the intersection of manner of production and form of production very effectively. This is one that Josh from our team picked out and is a great illustrative example. Thanks to Josh on this one.
This is one of 21 cases from Magistrate Judge Maureen Kelly in the Western District of Pennsylvania that are included in our database and our [Issue] Tags for this case are special master, form of production, manner of production and metadata.
All right, so let’s talk a little bit about the facts.
There’s a lot of underlying information on the claims in this case, and we’ll see why shortly. In essence, this is a situation where you’ve got two competing businesses dealing with breach of contract and breach of fiduciary duty related to claims for usurpation of business. Essentially stealing contacts, but again, not a lot of details in the case, but the claims are brought by Profit Point as the plaintiff here.
In response to discovery from the plaintiff, the defendant made a production of 552 documents that included a total of 1466 or 67 pages via an FTP link with TIFF images and a load file containing metadata.
If you’re not familiar with FTP, that stands for file transfer protocol. More often you’ll see SFTP, which is secure file transfer protocol. If you’re using a share file or Ignite or Media Shuttle, all of those are going to be secure file transfer protocols. Each one is faster. The more you pay, the better you get. And that’s a great way to exchange data these days, because it alleviates the need to ship hard drives.
Now there’s a certain quantity over which using an SFTP is really going to be onerous for both sides, both from an upload and download perspective. And it may be faster to put it on a drive. SFTP is a really common way for being able to exchange data, especially with a production of this size 552 documents, barely a gigabyte of data, probably not even—probably a quarter to a half.
But in this case, the defendants did produce TIFF images and a load file containing metadata. That is really all the information that we have. There’s no specifics in the case about the fields of metadata that were provided, how the information was organized, anything.
Essentially, plaintiffs moved to compel claiming that plaintiffs did not produce the data in accordance with Rule 34 and that the production was a data dump. The defendants contended that they produce documents, “in a commonly accepted manner that, along with an accompanying load and metadata files, permits import into the document database platform. Relativity,” which is what the plaintiff was using, according to defense counsel.
Here we’ve really got a case that is the intersection of form of production, which is the actual file types and manner and process in which you provide that information. You’ve got form that deals with what are the file types that you’re doing. How are you going to provide attachments? Are families going to be kept together? How are you going to deal with specific sources of data and those kinds of things? Then manner of production, which is technically how the information is transmitted.
This case is really an overlap of both of those. And we’ve talked a lot about over in the Case of the Week form of production specifically and planning for form of production. We even wrote a post on our ESI protocol series dealing with form of production as well as manner of production. You’ve got those two resources out there as well that we can also include in the comments after this is over.
The way that the information is delivered and the way the information is organized upon delivery I often refer to as manner of production. You could easily refer to it as form of production. For purposes of issue tagging within eDiscovery Assistant we generally include both of those, but this would be more of a manner of production situation.
Generally, manner of production should be addressed either in an ESI protocol or by agreement, and should be unique to the specific case that you’re working on with specific metadata fields based on the sources of ESI that you are asking for. Again, this is a situation where you need to plan, plan, plan. What are the types of ESI that you’re anticipating receiving in a case? As such, how do you want that information presented to you? How are you going to want to sort and filter it?
Now, in this particular case, we’re talking about less than 1500 documents. I’m sorry, 552 documents, less than 1500 pages. This is a really small production. Frankly, I think it’s hard to argue data dump in a 1500 page production, but that’s what we have here.
The question before the Court is what does Rule 34 require in terms of how documents are organized for production and what is the party entitled to. The Court looked first at the language of Rule 34 and cases that address this issue and manner of production. If you’re familiar with Rule 34, you know that section (b)(2)(e) of the Federal Rules of Civil Procedure provide that in terms of producing ESI unless stipulated or otherwise ordered by the Court—that would be an ESI protocol that the Court signs off on—these procedures apply to producing documents or electronically stored information.
I. A party must produce documents as they are kept in the ordinary course of business, usual course of business, or must organize and label them to correspond to the categories in their quest.
34(b)(2)(e)(I) says, you’ve got two options, ordinary course of business or by request.
[34(b)(2)](e)(II) says, if a request does not specify a form for producing electronically stored information, a party must produce it in form or forms on which is ordinarily maintained or in a reasonably usable form.
That’s specifically about form of production, not about the organization of the data. Really, we’re looking at 34(b)(2)(e)(I), and that’s kind of the issue.
The Court says that even in looking at the comments to Rule 34, there is no guidance on what ordinary course of business needs. There’s no clear guidance from the courts in case law. The cases that the plaintiff and the defendant cite to the courts are all non controlling, which means they’re from other jurisdictions or they’re from district courts that are not persuasive authority for this particular district court. And that’s a problem that we see in eDiscovery case law across the country where we’ve got one jurisdiction that has well developed, bodies of law on particular issues, many other jurisdictions that have never addressed those issues.
This particular issue has been addressed multiple times in case law that’s included in eDiscovery Assistant. It’s not consistent. It’s not addressed in every jurisdiction. We’re not looking at 50 cases from across the country or in individual States or even all of the federal circuits that address this particular issue. You’re going to have to look to non-persuasive authority. You’re going to have to cite non-persuasive authority to the courts.
In looking at the decisions that were cited to the Court, one of those things that the Court sees is really key here, and that is, “the courts have applied Rule 34(b)(2)(e)(I) to productions of ESI have formulated the standards for determining whether ESI was produced as it was kept in the usual course of business in different ways depending on the nature of the ESI produced, the volume of ESI produced and other factors.”
That’s really our biggest takeaway for today. That manner and form of production are really case specific, which means that the manner of production and form of production is all about the types of ESI that you are dealing with in your case, and that takes us back to plan, plan, plan.
You need to consider what are the sources of ESI that you’re going to be receiving and how do you plan for those? We’re starting a new series on our blog this week entitled ESI Issue Spotting, and we’re going to be talking about various sources of ESI. Some of the tenants of that particular blog series will address how to handle form and manner of production as you’re planning for your case for individual types of ESI. One that’s sticking in my head these days is Teams and Slack, because those are two very up and coming production sources that we’re seeing a lot in our cases, and they need to be dealt with separately.
One of the ways in which the Court looks at—I’m going to go through kind of a list of ways the Court says you can organize information—is by custodian, and that’s a great way to do it if you have custodian based data.
In a source like Slack or source like Teams, that information may not be custodian based. It may be channel based. I’m forgetting the term that’s actually used in Teams that equates to the channel in Slack, but you could organize a metadata field for that particular issue. Channel name could be a metadata field that’s provided for Slack data. Source could be provided. File extension is another way to be able to organize by sources of ESI.
My point is that you really want to think about what are the sources of ESI that you have. How do you want them to be organized so that you can find them effectively when you receive those documents. In essence, you really want things to be organized by metadata fields and then you want to load them into a platform that’s going to handle those metadata fields and allow you to organize the information the way that you want to.
You need to think about that and plan and request what you need upfront. Generally, we do that in an ESI protocol, and as we talked about on our blog post series, an ESI protocol does not need to be overly complicated. It just needs to address what the issues are that you have in your case.
Going back to the Court’s discussion here, the Court also looked at the 1980 amendment to Rule 34, which was made to prevent, “the juvenile practice whereby the producing party purposely rearranged the documents prior to production in order to prevent the requesting party’s efficient use of them.” We could also sort of put in here in that same category, burying the documents, leaving out metadata fields or converting things to PDFs that make them harder to find. There are lots of ways to bury documents that we’ve seen, and this amendment to Rule 34 was really designed to eliminate those practices. Now, what the Court says in an important quote is:
The overarching standard consistent with the amendment to Rule 34(b)(2)(e) discussed from 1980 is that the parties are entitled under the federal rules to rationally organize productions so that they may readily identify documents, including ESI that are responsive to their document request.
What are some ways to solve this problem of how do you get your information organized effectively? Well, there’s different ways that, again, need to be tailored to the type of case that you have. You can have information by custodian, as I mentioned. You can have them in chronological order with attachments. Make them fully searchable sortable by metadata fields in a folder structure that’s organized by custodian, or in a way that they’re maintained on a storage device, whether that’s a hard drive or a server. Those are all ways that the Court identifies that you can solve these problems.
I prefer to really think carefully about the sources of ESI and the types of metadata that are available for those sources, and create custom metadata fields that are easily populated by the producing party. If, for example, you export Slack data or personal Gmail for a particular custodian or some other specific source of data, when you load that data, you can create a metadata field and you can populate it with the source of that data. That’s one way to think about it.
Most of your review platforms will support custom metadata fields. Figure out what kind of metadata is available for the source of ESI that you’re talking about and figure out how to be able to sort for it.
Right now, you can use file extension pretty easily to be able to sort for photographs or images as long as those haven’t been converted to a PDF, if they have, and that makes that search more difficult. You want to make sure that you’re thinking about each individual type of ESI and the type of metadata that you want to be associated with it. If you want images to be in their native format, whether that’s an IMG folder, a JPEG, you want that to be stated out in your ESI protocol as to what format those documents should be produced in so that you can use file extension as a way to filter those.
Images are a particularly difficult source of ESI to handle because they’re just an image. There’s no text from them. They can’t be OCR’d, and it’s really hard to filter and sort through them. One of the things that we advocate for pictures for our clients is that you create a coding panel for those images and add information about those images during the review process so that you can find them more effectively.
What did the Court say here in this case based on this analysis of Rule 34? Well, essentially, they said there’s not enough information provided by either party for us to be able to tell whether the requirements of Rule 34 are met. Basically, the Court said that the record did not contain any specific information about the production, whether it consisted of emails or non emails, to the extent which the TIFF files and the images were produced, or whether they were in hard copy that were converted to electronic files for purposes of the production.
The Court really felt like the record was underdeveloped regarding the specific metadata and file source information that was available. The Court did adopt a special master’s recommendation that the motion to compel or the ability to rebrand the motion to compel for plaintiffs be left open pending providing further information. Here what the Court is saying is, if you’re going to come to us with a Rule 34 claim, you got to tell us specifically what the problem is. What are you having problems sorting and filtering based on the production that you have? What are you not able to do that you should be able to do under Rule 34?
If you’re going to bring a motion of compelling based on form and manner of production, you need to make sure that you’re providing enough specific information for the Court to be able to make a determination under Rule 34 or the state equivalent as to whether the requirements of that rule have been met.
We’ve talked some about takeaways already, but let’s do it a little bit more formally.
Manner of production is really key to how you get the data organized so that you can search and filter it effectively to get what you need. I try to think about in planning for—in our ESI protocol and how we’re going to receive data and in what fields of metadata we want—how are we going to get this information, and how do we need to use it effectively.
The reality is that the way productions happen is they either happen right up against the wall where you’ve got three days to prepare for depositions, or you sit on them for months. I’m going to propose two things. One, if your discovery schedule is such that maybe you’re in a rocket docket, or maybe you sat on discovery today a while, and now you’ve got to do it all very quickly that you make sure that your metadata fields in your ESI protocol allow you to search and filter that data effectively so you can organize it and review what needs to be reviewed first. You can do that by source. You can do that by custodian. You can do it by keywords.
That’s another thing to think about is key terms. If you are in a case where you agree to many, many search terms or strings of search terms, I suggest that you add a metadata field for which search that document is responsive to, and it may be multiple ones that can allow you to search by those terms. Oftentimes we’ll have search terms that are responsive to individual RFPs. Even if the documents are not coded as being responsive to request number four or request number 300, if you have the search terms that were set up for search 300, then you can filter by those search terms as a metadata field and be able to find the documents that were supposedly responsive to that request.
Think creatively about how you leverage the technology to organize the information for you on the back end.
Metadata is key, key, key. In case you’ve missed that in the last 25 minutes, I think that really thinking clearly about what kinds of metadata is available for each particular source of ESI is going to help you organize that information more effectively. I really think that even in smaller productions, you can do this effectively. If you’re getting non searchable PDFs with no metadata, you’re not going to be able to do any of this, and you’re just going to have to review each individual document the way that you have it, and perhaps use a platform that allows you to code it, but you can’t do any searching and filtering. To me, if you’ve got more than a few hundred documents, it’s going to be really hard to organize without some effective metadata.
Second takeaway really is that certain types of data that are not custodian specific need to be considered. You might have data from third party providers, right. If you’ve got a wrongful termination claim and you need to get benefits or other information from a third party platform that manages that for the organization, that information could be produced in a metadata field by source of ESI. If you’ve got Slack or Teams channels that are not custodian specific, you may have to provide the channel name and the participants in that channel. Photographs we talked about. If you’ve got marketing materials that are not easily OCR’d, you could provide file or source path from that information so that you can gather that.
Generally file and source path is always collected, and so it’s a matter of being able to display that information or agree to it in an ESI protocol. If that makes sense. There are times when it does and times when it doesn’t.
Those are some of the ways in which you can deal with manner and form of production. It’s a critical area to being able to effectively use ESI once you receive it in production.
There’s also another level of QC that you want to do when you receive ESI in production. We’ve got a checklist included in eDiscovery Assistant as to what that looks like. You want to go through those steps and make sure right out of the gate upon receiving the production that you’ve got a project manager or somebody who can look at technically whether what you receive in your production is correct. Because if not, you need to go back to the other side very quickly and get that information in a form that is useful under Rule 34 or your state equivalent.
That’s our case of the Week for this week.
Thanks so much for joining me. If you’re an ACEDS member and interested in using eDiscovery Assistant, there’s a discount available to current ACEDS members and a 90-day trial for those who are taking the ACEDS exam. Please reach out to us at firstname.lastname@example.org and one of our team members will get you set up.
Thanks so much. Have a great day, and I look forward to seeing you next week.
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