L.H. v. Schwarzenegger, Case No. 06-02042 (E.D. Cal. May 14, 2008)
Here’s a case where the lawyer either didn’t or couldn’t get any assistance, when it was badly needed. The opinion reads as a catalog of late production, generally in violation of court orders, all of it apparently driven by a tight scheduling order from the district judge. Magistrate Judge Gregory H. Hollows was having none of it, and sanctioned the State of California for its tardy production.
The interesting part of the opinion relates to the production of electronic documents in PDF format. The original documents had been searchable and sortable. The PDFs were neither. The court turned to Rule 34, which provides that a party may request documents, including electronically stored information, “from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonable usable form.” Slip Opinion at 5-6 (quoting Fed. R. Civ. P. 34(a)(1)(A)). The form of production is explained in the Advisory Committee Notes:
The rule does not require a party to produce electronically stored information in the form it [sic] which it is ordinarily maintained, as long as it is produced in a reasonably usable form. But 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. If 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.
Slip Opinion at 6 (quoting Advisory Committee Notes to Rule 34). The court found the State’s production deficient.
Finally, the court was not pleased with the State’s efforts at producing a privilege log. The court noted:
[T]here appear to be more than 100 entries indicating documents were created by or sent to counsel for plaintiffs in this case, 83 documents for which defendants have not identified any privilege, privileges claimed over documents written by or to special masters in Valdivia and Farrell which were shared with plaintiffs’ counsel in those cases, who are the same counsel in this case, claimed privileges over documents written by or sent to the court, and opinions written by other courts, just to name a few. Such abusive assertions of privilege subvert the purpose of the log.
Slip Opinion at 12.
In the end, the court invited the plaintiffs to file yet another sanctions motion over the privilege log abuses, and awarded attorney fees and expenses in connection with several of the motions to compel.