Key differences under the California Act include: (i) the right of a party to request production in a specific format; (ii) a responding party bears the burden of proving that data are inaccessible; and (iii) an explicit right to inspect, copy, test, and or sample ESI in the possession or control of a third party.

Limits on ESI Discovery can be appropriate where: (i) the information can be produced from a less-burdensome source, (ii) the discovery sought is unreasonably cumulative or duplicative, or (ii) the burden of producing the ESI outweighs the benefit.

ESI that “is from a source that is not reasonably accessible because of undue burden or expense” shall not be produced, provided the responding party provides written responses identifying data classified as inaccessible and the responding party takes affirmative action to seek a protective order and bear the burden of demonstrating that the ESI is in accessible.  If it is established that the electronically stored information is from a source that is not reasonably accessible because of undue burden or expense, the court may nevertheless order discovery if the opposing party shows good cause.

A party that inadvertently produces ESI that is subject to a claim of privilege or attorney work product protection may seek the return of the ESI by notifying the receiving party.  Upon notice, the opposing party must sequester or return (and not use) the ESI until the claim of privilege is resolved.  The opposing party, where appropriate, may file a motion within 30 days to contest the producing party’s claim of privilege.

          

California Electronic Discovery Act Signed Into Law — Takes Effect Immediately originally appeared on Law Blog 2.0 on July 7, 2009.

A TIFF production (along with a load-file containing agreed upon meta-data fields and OCR text) is the industry standard in many jurisdictions. (A few attorneys (and a lot of e-discovery vendors) more daring than I may attempt a native production but I do not recommend it.) TIFF is an abbreviation for “Tagged Image File Format”. A TIFF is an industry file format, which consists of the image and header information. In other words, a TIFF is simply a picture of a document. This picture contains no other data about the contents of the original file; when a native file is converted to a TIFF file, the text of the document and associated meta-data is lost. The use of a TIFF based production methodology is desirable due to the difficulties and risks in producing native files. Native files are virtually impossible to redact, bates-stamp, and review. (The very act of opening up the document will passively change attributes of the file being reviewed.)

The Federal Rules of Civil Procedure require that counsel produce documents in a reasonably usable format or the format that the documents are maintained by counsel’s client. In the situation where counsel produces native documents (in a native production) the production would be acceptable under the Federal Rules of Civil Procedure (even in some cases where the data may not be search-able as is often the case with legacy data).  Assuming we are dealing with legacy data, a production is not reasonably usable if counsel converts native files to TIFF images in lieu of producing the native files, but fails to produce the OCR text and reasonably necessary meta-data fields (e.g., for an email common meta-data fields include To, From, CC, BCC, Subject, Date, and Attachments).

Legal counsel, in order to make life more difficult for the opposing counsel, may try to produce only TIFF images (without OCR text and meta-data fields). One such case in the Eastern District of California, L.H. v. Schwarzenegger, 2008 WL 2073958 (E.D. Cal. May 14, 2008), illustrates the situation and the consequences.  In this case the defendant’s counsel converted native documents from their original format, which was search-able into PDF files that were not search-able. (Note a PDF file that is not search-able, for purposes of our analysis, is the same as a TIFF image; however, the PDF file format is much more complex then the TIFF format and can potentially (and generally does) include search-able text and other data.)  The Court in the Eastern District of California, in the above case, found the production inconsistent with Rule 34 because the defendant’s counsel produced documents which were not search-able while the original (native) documents had been search-able. The Court in this case awarded the plaintiff monetary sanctions in light of defendant’s “purposeful foot dragging on discovery” and resulting prejudice to the plaintiff’s case.  Other jurisdictions have similarly recognized this same rule. See DE Technologies, Inc. v. Dell, Inc., No. Civ.A. 7:04CV00628 (W.D. Va. Jan. 12, 2007), (court found that counsel’s production was “reasonably usable” and thus in compliance with Rule 34 because the documents produced could be searched); see also D’Onofrio v. SFX Sports Group, Inc., 247 F.R.D. 43 (D.D.C.2008)(court holding that Rule 34 does not require production of electronically stored information in the original format unless necessary for it to be reasonably usable).

Committee Note to Rule 34(b) (to the recently amended Federal Rules of Civil Procedures) states that “[i]f the responding party ordinarily maintains the information it is producing in a way that makes it search-able by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.” A party who converts native documents to TIFF images without an accompanying load-file, without search-able text, and with a bare minimum of meta-data has not produced the data in a “reasonably usable” format.  “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.”  (Committee Note to Rule 34(b)(as amended December 2006)).

Principle 12 of the Sedona Principles, Best Practices Recommendations & Principles for Addressing Electronic Document Production (2d ed. June 2007) similarly states that:

Absent party agreement or court order specifying the form or forms of production, production should be made in the form or forms in which the information is ordinarily maintained or in a reasonably usable form, taking into account the need to produce reasonably accessible meta-data that will enable the receiving party to have the same ability to access, search, and display the information as the producing party where appropriate or necessary in light of the nature of the information and the needs of the case.

There are two cases often cited by those opposing the production of OCR text along with at least some meta-data.  These cases either predate
the e-Discovery Amendments of December 2006 as is the case Wyeth, or rely on precedent that predates the e-Discovery amendments as is the case in Pace. See Pace v. International Mill Service, Inc., 2007 WL 1385385 (N.D. Ind. 5-7-2007); see also Wyeth v. Impax Laboratories, Inc.,
2006 WL 3091331 (D. Del. 10-26-2006)(The court in Pace relied on Williams v. Sprint/United Management Co., 230 F.R.D. 640
(D. Kan. 2005), for the prpposition, “[a]bsent a special request for meta-data,” a production of documents in PDF or TIFF images”).

A production of TIFF Images that does include OCR text along with a minimum set of meta-data (in the view of many Courts especially those in California) may not be considered “reasonably usable” and counsel may risk sanctions.  However, an equally likely result may be a motion to compel the production of native documents (also undesirable).  Courts when confronted with this scenario frequently will order the production of the native documents where the TIFF production is limiting and prejudicial to opposing counsel. See Nova Measuring Instruments Ltd. v. Nanometrics, Inc., 417 F. Supp.2d 1121 (N.D. Cal. 2006)(court granted motion to compel production of native file format, were original production format failed to include meta-data); see also Lorraine v. Markel American Ins. Co., 241 F.R.D. 534 (D. Md. 5-4-2007)(court finding meta-data essential aspect of an electronic evidence),

          

Produce in a Reasonably Usable Format or in the Form in Which Data Are Stored in the Normal Course of Business or Risk Potential Sanctions and an Order to Compel the Production of Native Documents originally appeared on Law Blog 2.0 on July 24, 2008.