White v. The Graceland College Center for Professional Development & Lifelong Learning, Case No. 07-3219 (D. Kan. August 7, 2008)

The moral of this particular opinion should be pretty obvious by now. Many, if not most, lawyers believe, rightly or wrongly, that E-Discovery in generally not an issue in many of their cases. This typically means that the lawyers agree at the beginning of the case that there is nothing to discuss vis-à-vis e-discovery in the Rule 26(f) meet and confer. That’s clearly what happened here. Indeed, the Judge was just a bit critical of the parties for that very reason. It is not enough, however, to reach this agreement. You have to agree on the form of production, even when there are no e-discovery issues, because there often is e-discovery. And if you produce ESI as paper, like the defendant in this case did, you’re likely to get a motion from your opponent seeking a reproduction in electronic format, like the defendant in this case did. And the Judge is likely to grant it, like Magistrate Judge David J. Waxse in this case did.

The analysis is pretty simple. The court explained:

Because Plaintiff failed to specify a form for producing the electronically stored emails and attachments, Defendants were required under Rule 34(b)(2)(E)(ii) either to produce the emails and attachments in the form (1) in which they are ordinarily maintained, or (2) "in a reasonably usable form." In this case, neither party disputes that Defendants ordinarily maintain their emails and attachments in an electronic format. Nonetheless, Defendants produced the emails and attachments in paper form. They accomplished this by converting the emails and attachments to PDF format and then printing them out for production.

Slip Opinion at 19.

The defendant contended that paper was a reasonably useable form. The plaintiff disagreed, mainly because the date on which some of the documents were created was a major issue in the case, and the metadata will disclose those dates. The court was sympathetic:

The Court finds that Defendants failed to produce the emails and attachments in either the form in which they are ordinarily maintained, or in a "reasonably usable form," as required by Rule 34(b)(2)(E)(ii). Defendants' conversion of the emails and attachments to PDF documents and production of the PDF documents in paper format does not comply with the option to produce them in a reasonable usable form. The advisory committee notes for the 2006 amendments to Rule 34 provide guidance that Defendants' option to produce in a reasonably usable form does not mean that they are 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 Plaintiff to use the information efficiently in the litigation. As Defendants have not produced the emails and attachments in a "reasonably usable form," Plaintiff is entitled to have the emails and attachments produced in their native format. She has further explained the critical importance of obtaining them in their native format with metadata intact.

Slip Opinion at 20-21.

Note, the court did not rest its decision on the plaintiff’s articulated need for electronic copies. The gist of the opinion is that paper is virtually never a reasonably usable substitute for ESI.

The court also dealt with another troubling aspect of the Rules, the timeliness of a privilege log. Plaintiff sought a ruling that defendant had waived its attorney-client privilege, because it had taken about 3½ weeks after answering document requests with privilege objection to produce a privilege log, and then took an additional five weeks to produce a supplemental version.

The court noted that Federal Rule of Civil Procedure 26(b)(5)(A) provides that when a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must:

  1. expressly make the claim; and
  2. describe the nature of the documents, communications, or tangible things not produced or disclosed--and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.

The court cited a raft of cases that basically refused to order waiver under these circumstances, basically holding that unjustified delay is required for waiver to occur. Two cases, where waiver was ordered stood out. The distinguishing factor was the fact that the privilege log had been prepared after the court was asked to rule on the issue and after entry of an order directing production of the documents

Finally, the plaintiff challenged the sufficiency of the privilege log. The court found that the supplemented version was adequate. For a thorough discussion of what is required in a privilege log, read Magistrate Paul Grimm’s discussion in Hopson v. The Mayor & City Council of Baltimore, 232 F.R.D. 228 (D. Md. 2005), discussed here. It’s more that you think.

Read the opinion