This is the third post in a four-part series on electronic discovery by Christian & Small Partner J. Paul Zimmerman. Click here to read Part I and here for Part II; and here for Part IV.
Electronic Discovery: Collecting Electronically Stored Information
So far we’ve discussed what electronic discovery is and the importance of preservation. While not every case will support the cost of forensic collection of electronically stored information (“ESI”) from all of the devices involved – and a less expensive method of collection may be justifiable – fabricated and altered electronic evidence, or selectively produced evidence, can be difficult to identify if not collected correctly. Fabricating emails, Twitter messages, etc., is simple, and can be hard to identify if handled as PDFs. If the argument can be made that forensic techniques should be required in collecting evidence, then doing so is the safer course. As in other contexts, however, counsel must be prepared for the same demand to be made to their client in discovery, so a factor to consider in whether to demand forensic collection of ESI is whether counsel’s client can afford to produce in the same manner.
A Word About Metadata
“Metadata” is information generated by computer devices regarding the systems and files used. Metadata receives tremendous attention in electronic discovery and is one of the reasons that drives lawyers to (supposedly) “avoid electronic discovery.” However, metadata does not always (and, indeed, rarely) has evidentiary value that is essential to a case. Most of the time, metadata is used in large document cases to assist in the identification, search, collection, and analysis of relevant ESI. When relevant documents number in the thousands, tens of thousands, or more, being able to search and analyze via metadata is essential to thorough, efficient, and cost effective representation, and counsel should consider collecting metadata, requesting metadata, or both.
In cases small enough to simply review documents, one after the other, start to finish, the analytical need for metadata is much less. In such cases, the primary value of metadata is from an evidentiary standpoint but is not necessary in every case. Metadata can be useful in determining such things as when a document was created or modified, the device from which it originated, and so on. Metadata relating to pictures can identify the date, time, location, and device with which they were taken. The usefulness of such metadata for authentication, factual investigation, and maintaining data security should be readily apparent. In many instances, such evidence can be admitted by a witness with knowledge, but in disputes as to when someone received a document, which version of a document existed when, whether a person had received a particular document, etc., this information, coupled with hash values can be invaluable. This is particularly true in matching emails to their attachments.
If such issues are not involved in the case, and the number of relevant documents is small enough that metadata is not needed in order to search and analyze documents, then the value of metadata in a case is generally low. However, metadata should generally be preserved, unchanged, at least initially, until the litigants can determine whether any issues exist requiring the use of metadata or until protocols or stipulations can be reached in the case.
Many do not realize that metadata is easily changed. Using the common “drag and drop” method of preserving documents by clicking on the file and dragging it to another folder or drive typically changes several items of metadata. Opening a file can change the metadata. If accurate metadata is going to be needed (or requested) in a case, consider employing technical assistance in preserving and collecting relevant ESI so that metadata is not changed (and, therefore, spoliated). Simply forwarding email to counsel can present similar problems as opposed to harvesting the emails from the computer on which they reside in the usual course of business—it can also put counsel in the chain of custody.
Form of Production
Litigants can avoid receiving PDFs that are several thousand pages long as discovery responses. When drafting discovery requests, always consider the form of production. Both state and federal rules allow the requesting party to specify the form of production. It is recommended to do so, even if only for certain types of data. Otherwise, parties have little control over the form in which they receive documents, which can be problematic and expensive for the requesting party due to inefficient search and review for documents (i.e., receiving a single 6,000 page PDF as a discovery response). Obtaining documents in a searchable format allows the attorneys and staff to more efficiently work with the file and leads to more effective analysis of the documents (and, in turn, the case).
That being said, some institutional clients refuse to produce documents in native format, and it is usually difficult to justify a refusal to produce native format documents if that party’s request for production demands them. Discuss the form of production to be used in the case with the client before agreeing to a particular format with opposing counsel. Reversing an agreement can be difficult. However, if the case has even the potential to involve more than a couple thousand documents, either request them in native format or as static images (TIFF or PDF) with a word index and a metadata “load file.” Simply applying optical character recognition (“OCR”) to the documents is not nearly as helpful and can change the text of the documents.
Native documents can be more problematic to work with, but are sometimes required, and almost always provide better information and analysis than other forms of production. In most cases, PDF format is easier to deal with, but request along with it an index of all the words in the documents and a load file. Failing to request this format at the outset risks the production of an unmanageable number of PDFs, making the case much more difficult and expensive to work on if there is no index built from the documents. Counsel should avoid getting stuck with more PDFs than the client will want to pay counsel to click through (or have the staff click through) to find particular documents. Obviously, scanned images of hardcopy documents must be reviewed manually since no electronic format exists, and OCR may be of limited benefit, depending on the quality of the scanning.
Native format production in particular will need to have chain of custody documented. Request chain of custody documentation along with the production and continue documenting chain of custody upon receipt. For this reason, consider requesting that a native format production of any significant size go directly to a vendor rather than through counsel’s office (so that counsel is not at risk of being in the chain of custody). Either way, use a chain of custody form to document who has had the documents and what was done with them during each person’s custody.
Not all documents need to be requested in the same format – so, for example, emails and spreadsheets can be requested in native format, with other documents in PDF accompanied by a load file of relevant metadata fields.
If no form of production is specified, then the responding party can produce documents either in the form in which they are maintained or in any other form that is “reasonably usable.” The rules provide little guidance as to what constitutes a form that is “reasonably usable,” but many cases have clearly stated that producing documents in a static form, such as PDF, without useful metadata, when such information is available to the producing party, is not a “reasonably usable” form, nor is it considered to be in the form “as kept in the ordinarily course of business.”
Remember that using OCR on static images can change the contents of the files, so only use OCR on a copy so that the original text is maintained. If no form of production was specified or if the responding party intends to object to the form requested, then the responding party must notify the requesting party as to the form in which it will respond. Such notification should be made in advance of the production—otherwise, the responding party runs the risk of producing the ESI a second time in an acceptable format, notwithstanding Ala. R. Civ. P. 34(b)(ii).
Finally, Rule 45(c), regarding steps to protect the recipients of non-party subpoenas, was amended in 2010 when Alabama adopted rules regarding electronic discovery. Subpoena forms that predate those amendments should be revisited. Form 51A, in the Alabama Rules of Civil Procedure, is compliant with the 2010 amendments.
This post, as well as the others in this series, was excerpted from Zimmerman’s “It’s All Electronic Discovery” article in the spring issue of the Alabama Defense Lawyers Association Journal magazine. Click here for the full article.