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Like all categories of expense, the corporate litigation budget is under continual scrutiny. The collection, processing and review of electronically stored information (ESI) in civil disputes can be an enormous expense, and in the current economy, companies persistently search for ways to cut costs and increase efficiency. There are numerous pitfalls within the e-discovery process that could add to the expense of corporate litigation if due care is not exercised. One such pitfall is the failure to properly execute and respond to production requests. A party's failure to "follow the rules" when producing ESI may—and most likely will—lead to judicial intervention. As reported in Kroll Ontrack's 2008 Year in Review, production issues were discussed in approximately 20% of the 138 most important e-discovery cases of 2008. Based on opinions issued thus far in 2009, this percentage certainly seems to be holding steady – if not increasing. Production is an important part of the e-discovery process, and as illustrated below in recent problematic production cases, the failure to manage production effectively may lead to costly repercussions. Re-Production Requests One of the most problematic and common issues involving production requests is whether documents are produced in compliance with the Federal Rules of Civil Procedure. Fed.R.Civ.P. Rule 34(b) provides the producing party the option of organizing documents produced to correspond to the requests to which they are responsive, or producing the documents "as they are kept in the usual course of business." The failure to produce documents in either of these formats may result in a court order to re-produce. For example, in a recent case from the Western District of Washington, the court determined the defendant's production of an Internet link containing more than 7,000 pages of raw code listing e-mails did not constitute a reasonably usable format and ordered the re-production of the e-mails indicating which e-mails responded to which request. Quinstreet, Inc. v. Ferguson, 2009 WL 1789433 (W.D. Wash. June 22, 2009). Production can be costly the first time around, and being on the losing end of a court order requiring a re-production is not what any litigant wants. Therefore, the litigation team responsible for production should exercise due care, ensuring production is organized and in a compliant format. The Eastern District of Kentucky also addressed the issue of re-production in In re Classicstar Mare Lease Litig., 2009 WL 260954 (E.D. Ky. Feb. 2, 2009). In that case, the defendant previously produced 273,000 pages in TIFF format and claimed the plaintiffs' request for re-production in native format would be extremely burdensome. The court cited a previous exchange in which the parties agreed on native format and ordered the defendant to re-produce the data according to the agreement. This case demonstrates the importance of discussing production formats early on as those agreements will influence later party objections and issues. Without that agreement, the court may not have ordered re-production because it found the defendant had appropriately complied with production obligations in the original production. Courts may not require a re-production if the requesting party does not demonstrate that the new format would make the documents "reasonably usable," as exhibited in Dahl v. Bain Capital Partners, LLC, 2009 WL 1748526 (D. Mass. June 22, 2009). In that case, the court held the defendants did not have to incur costs to change production format of already produced documents because the plaintiffs failed to show that translating the documents to another format was necessary. In addition, making a timely objection to questionable production format is essential. In Ford Motor Co. v. Edgewood Properties, Inc., 2009 WL 1416223 (D.N.J. May 19, 2009), the court denied the defendant's motion for re-production in native format of the plaintiffs' entire ESI production, finding the defendant waived its objection to production format by waiting eight months to first object and an additional two months before bringing the matter to the court's attention. Thus even if a party has a valid production format objection, the court may deny re-production requests if it considers the objection untimely. Document Dumping Another common scenario that gives rise to court intervention is a party's decision to "document dump." Document dumping occurs when a party does not produce the requested documents in a clearly organized fashion, but rather sends the data to the requesting party in an incoherent lump. Courts have been quick to chastise document dumpers, as demonstrated in SEC v. Collins & Aikman Corp., 2009 WL 94311 (S.D.N.Y. Jan. 13, 2009). Here, the defendant objected to the SEC's production of 1.7 million documents as an unorganized "document dump." The court did not buy the SEC's argument that the documents were produced how they were maintained in the usual course of business and ordered the SEC to re-produce the documents in an organized manner that responded specifically to each of the defendant's requests. However, the party requesting a re-production based on an alleged "document dump" bears the uphill battle of demonstrating how the production fails to meet Rule 34(b)'s requirements. In Valeo Elec. Sys., Inc. v. Cleveland Die & Mfg. Co., 2009 WL 1803216 (E.D. Mich. June 17, 2009), the court found the plaintiff produced documents as they were kept in the ordinary course of business despite the defendant's argument that it was required to manually open and review each file, which were given "innocuous" names in order to frustrate the review. Gamesmanship Courts have also intervened when it is clear that a party is attempting to "play games" with production, as shown in Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., 2009 WL 546429 (M.D.Fla. Mar. 4, 2009). In this case, the plaintiffs produced the requested documents (after five discovery orders) as TIFF images without metadata, despite the defendants' original production request that explicitly sought native format with metadata. Based on several examples of gamesmanship on the part of the plaintiffs and attorneys, the court found that if they believed the production format was substantially justified, they would not have concealed information and made material misrepresentations. The court ordered the plaintiffs to bear all costs related to the production of its database and sanctioned a lead plaintiff attorney, ordering him to pay reasonable attorneys' fees, costs and expenses incurred by the defendants. The law firm was also found responsible for the discovery misconduct and was jointly and severally liable with the lead attorney to pay the defendants' expenses. Similar to Bray & Gillespie Mgmt. LLC, the court ordered the imposition of sanctions in Doppes v. Bentley Motors, Inc., 94 Cal. Rptr. 3d 802 (Cal. App. 4 Dist. 2009). In Doppes, the defendant failed to produce documents and repeatedly violated discovery orders. The court determined the defendant had stonewalled in producing highly relevant documents resulting in severe prejudice to the plaintiff, and that the defendant's repeated egregious violations of discovery laws threatened the integrity of the judicial process. Thus the court found default judgment sanctions to be appropriate and awarded $402,187 in attorneys' fees to the plaintiff. As these cases illustrate, litigation teams must discuss production format up front, avoiding any urge to "hide the ball" regarding documents and production capabilities. This will allow litigants to avoid committing common production pitfalls, potentially preventing them from suffering severe economic and time consequences. Compliance with the Federal Rules of Civil Procedure and effectively planning ahead will provide the litigation team with the best chance of successfully navigating the production process. Special thanks to Regina A. Jytyla, Kroll Ontrack Managing Staff Attorney, for her assistance in writing this article. In her role, Ms. Jytyla tracks the evolving common and statutory law in the areas of corporate information management, electronic discovery and computer forensics, and helps attorneys, litigation support and IT professionals understand the pressing legal and practical issues involved in corporate information management and e-discovery. She can be reached at gjytyla@krollontrack.com.
Trial presentation technologies help sell a case to the jury. One important component of trial presentation technology is the use of graphic design. Effective graphical displays can have a valuable and significant impact, helping both the judge and jury understand the case more clearly. Ultimately, using graphics persuasively can lead to victory for your client. Using graphical illustrations is particularly helpful in matters involving complex subjects, such as medical cases. Medical cases can center on a great deal of intricate information that is not easily understood to those outside the medical profession. Cases involving personal injury, medical malpractice, product liability or insurance may include extensive medical terminology or procedural descriptions. The use of informative visuals can take complicated medical jargon and translate it into a helpful "layperson" perspective. Some examples of effective medical illustrations include:
Nothing beats a well-conceived, custom-designed graphic presentation. Even in direct examinations when a witness must describe the way something works (or should have worked), design matters. However, it is important to remember that any graphical displays used should have a consistent visual theme that catches the eye without appearing jumbled and disorganized. Keeping graphical illustrations simple and to the point will decrease potential distractions and will provide your trial team with the best chance of success in front of judge and jury. Enhanced E-Discovery Certification Course Propels Litigation Teams to New Heights Save the Date for Kroll Ontrack's Upcoming Webinar on Safeguarding Sensitive Information from the Growing Threat of Data Security Breaches Meet our representatives at the following events:
Visit www.krollontrack.com/upcoming-events/ for more information on these events and others.
This newsletter was written by Kelly Kubacki and Meridith Socha, Kroll Ontrack Law Clerks. Ms. Kubacki can be contacted by writing to kkubacki@krollontrack.com. For more information about electronic discovery and computer forensics services, contact Kroll Ontrack at 800 347 6105 or visit www.krollontrack.com.
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