The year after: post-amendment federal case law in Indiana concerning discovery of electronically stored information

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1 By Lisa J. Berry-Tayman 1 The year after: post-amendment federal case law in Indiana concerning discovery of electronically stored information The Dec. 1, 2006 amendments to the Federal Rules of Civil Procedure (commonly referred to as the E-Discovery Rules ) added the term electronically stored information ( ESI ) to the vocabulary of the legal profession. 2 The term ESI is the evolution of the phrase data or data compilations, which was added to the Federal Rules in 1970, to describe a category of discoverable information. 3 That phrase has been interpreted by most courts and practitioners to include computerized records and other forms of electronic files. However, some questioned whether the phrase data or data compilations encompassed all electronic files, even though the Advisory Committee Notes to the 1970 amendments explicitly state that the phrase was to be used in an inclusive manner to reflect changing technology. 4 The E-Discovery Rules ended any debate on this subject. They make clear that ESI, including s, instant messages, electronic calendars, text messages from phones and all metadata associated with those files, is discoverable if non-privileged and relevant to the case at bar. Federal courts across the country have been called upon to apply the E-Discovery Rules in a wide array of disputes and factual settings. This article examines how the federal courts in Indiana have applied the E-Discovery Rules. Interestingly, the majority of Indiana case law involving ESI was decided prior to the effective date of the E-Discovery Rules. 5 Over this last year, the federal courts in Indiana have developed a small yet instructive body of case law concerning the discovery of ESI. These cases analyze ESI-related issues involving production format, thirdparty subpoenas and privilege. Production format: speak early or hold your peace The format in which ESI is produced can have a significant effect on litigation. In one case, obtaining ESI in its native format with all metadata intact may be essential to understanding the origin and history of key documents in the case. However, in another case obtaining ESI in native format could be costly and burdensome to review. Establishing a workable protocol for production of ESI at the outset of a case can assist both requesting and responding parties with their discovery planning and litigation budgeting. Practically speaking, there are four types of production formats for ESI. Most attorneys are familiar with production of information in paper format. With ESI, additional formats include native, quasi-native and quasi-paper, such as pdf/tiff image files. 6 With native production, ESI is produced as is. For example, producing an Excel spreadsheet in native format means that the requesting party will receive an exact copy of a.xls file capable of alteration or manipulation. With quasi-native production, information is taken from the original database and transferred to another type of database for production. For example, instead of receiving information built around custom or proprietary software, the requesting party will receive that same information formatted in Microsoft Access or other offthe-shelf software. Quasi-paper production format involves processing ESI and converting it into image files, such as pdf or tiff. The E-Discovery Rules encourage parties to select a mutually agreeable production format during the Rule 26 meet-andconfer process. 7 If the parties fail to agree on a format at the discovery planning stage, Rule 34(b) allows the requesting party to specify the desired production format for ESI in its request for production. If the parties cannot agree on the format, the fall-back format is a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable. 8 Pace v. Int l Mill Service, Inc. illustrates the importance of specifying a particular production format. Pace, a welder alleging that he received undesirable work assignments based on his race, requested that the defendant, International Mills Service ( IMS ), produce work orders. 9 IMS provided the information in portable document format or pdf. Pace complained that the pdf files limited his ability to search the work orders. In an attempt to address Pace s concerns, IMS produced the same work orders on a DVD that contained Microsoft Office Excel comma value files. Again, Pace complained and stated certain fields and information were missing from the file, including field descriptions. He also criticized IMS because the information was provided in comma-separated, rather than textdelineated format. IMS added the missing information and produced a second DVD in the requested text-delineated format. Not satisfied with that result, Pace filed a motion to compel, alleging that the previous and remaining shortcomings in IMS response violated Rule 34 and requested an award of costs of $15,320 incurred in analyzing the incomplete data. 10 (continued on page 15) Lisa J. Berry-Tayman Baker & Daniels Indianapolis, Ind. RES GESTÆ MARCH

2 E-DISCOVERY continued from page 13 Pace s motion backfired. The court found that there is no general standard format of production for ESI dictated by the E-Discovery Rules. 11 The court focused on Pace s specific discovery requests to determine whether IMS complied with its obligations under Rule 34. The court found because Pace merely requested the work orders, or documents that otherwise described the assignment of jobs at IMS, there was no corresponding obligation to produce these documents in any specific format, electronic or otherwise, provided they were reasonably useable. 12 The court s denial of Pace s motion to compel turned on his failure to specify a particular ESI form at in his Rule 34 request. 13 Lawson v. Sun Microsystems, Inc. involves another production format dispute. 14 In that case, Sun Microsystems produced requested information in hard copy paper format. Lawson argued the production should be in native format. 15 Sun Microsystems disagreed and stated that amended Rule 34 only requires the information be produced in reasonably usable format and a party need not produce the same electronically stored information in more than one format. 16 Sun Microsystems further argued that its production of ESI in paper format was proper because Lawson did not specify a desired format in his Rule 34 requests for production dated April 5, Contrary to Sun Microsystems contentions, Lawson had specified his preference for electronic format, albeit in a Jan. 17, 2007 letter to Sun Microsystems counsel instead of his Rule 34 requests. 18 In light of this documented request, the court ordered Sun Microsystems to produce the ESI in electronic format. However, the court did not specifically order the production in native format. 19 Pace and Lawson teach that the best practice for federal litigators is to think carefully at the outset of a case about the optimal format for producing and receiving ESI and to negotiate a protocol that is in the client s best interest. Failure to do so can result in missed opportunities to obtain critical information or, perhaps worse, needlessly costly and burdensome review and production of ESI. ESI challenges for the nonparty The E-Discovery Rules extend to nonparties to litigation under Rule 45. Rule 45 allows parties involved in litigation to obtain relevant evidence from nonparties. As amended, Rule 45 allows parties to request the production of ESI from nonparties. With a growing number of companies creating and retaining more information electronically, receiving a subpoena requesting ESI presents an array of challenges to nonparties especially since failure to respond could result in contempt of court, but a response could place a financial burden on the nonparty. Guy Chemical Company, Inc. v. Romaco, et al. offers useful guidance to nonparties faced with responding to such a subpoena. 20 In that case, Guy Chemical alleged a breach of contract and sought consequential damages flowing from the loss of business from third parties as a result of the breach. 21 To discover how much business was actually lost by Guy Chemical, Defendant Romaco issued a nonparty subpoena to ABRO, one of Guy Chemical s customers. In the subpoena, Romaco requested Guy Chemical-related correspondence, orders, canceled orders or orders that could not be filled. 22 ABRO (continued on page 16) RES GESTÆ MARCH

3 E-DISCOVERY continued from page 15 retained most of that information in electronic format. ABRO estimated that it would cost approximately $7,000 to search, locate and produce the requested information. When ABRO objected to the paying of this cost, Romaco filed a motion to compel production. Analyzing whether Romaco was entitled to the ESI in the possession of ABRO, the court looked at whether the ESI was reasonably accessible under Federal Rule of Civil Procedure Rule 45(d)(1)(D). Under Rule 45, a nonparty need not provide discovery of ESI from sources that it identifies as not reasonably accessible due to undue burden or cost. The court found that the $7,000 cost for searching and producing the requested information imposed an undue cost on ABRO and thus found that the information was not reasonably accessible. 23 However, since this information could not be found elsewhere and the information was critical to Romaco s defense of Guy Chemical s damages claim, the court further found that good cause had been shown for the production of the information. The remaining issue for the court to determine was which party should pay for the cost of production. 24 To determine who should pay, the court looked at a number of factors, including the presumption that the responding party ordinarily should bear the cost of discovery request compliance. The court found the most crucial factor to be ABRO s status as a nonparty. In deciding to shift the cost of production from ABRO to Romaco, the requesting party, the court reasoned: Simply put, it is not ABRO s lawsuit, and they should not have to pay for the costs associated with someone else s dispute. Not only is it fundamentally unfair to nonparties to bear the significant litigation costs of others, but also if this Court were to allow litigation parties like Romaco to impose such a burden on nonparties, then the likelihood of cooperation by nonparties in the future would be placed in jeopardy. 25 The Court limited its holding by stating that,... if Romaco could establish that ABRO s burden was in fact de minimus, then ABRO may have to bear its own costs of production. 26 But the court determined that Romaco had failed to make such a showing. Some might suggest that a $7,000 expense for a nonparty like ABRO, a company with $84 million 16 RES GESTÆ MARCH 2008

4 in export sales in 2005, is in fact de minimus. 27 Guy Chemical s treatment of undue burden or cost issue under Rule 45(d) is useful even for nonparties with healthy balance sheets. Interestingly, ABRO sought an award of attorney fees it incurred in responding to the motion to compel production. In a footnote, the court rejected this request, observing that... issues of electronic discovery and who bears the cost of production of such discovery is a novel issue and that... little case law exists on the issues, especially with regards to nonparties. 28 The court s observation provides fair warning that until a body of case law is established, pressing ESI issues with the courts may result in costs to all involved, even nonparties. Privilege and work product considerations related to discovery of ESI The attorney-client privilege and the attorney work product doctrine are well known to the legal profession. But the application of the work product and privilege rules to discovery involving ESI is a work in progress. In ABN Amro Mortg. Group v. Promised Land Mortg. LLC, the court examined the application of privilege to ESI namely, a Microsoft Access database that had been output to a spreadsheet without additional input or analysis. 29 Using the traditional rules of attorney-client privilege, 30 the court found the spreadsheet was a communication between legal counsel and an employee of the client for the purpose of or in connection with obtaining legal advice. 31 Thus, the communication was on its face privileged. But, it was not clear if the privilege had been waived through dissemination of the communication beyond those persons within the corporation who needed to know its contents. 32 The court next examined whether the spreadsheet constituted attorney work product. 33 Because the data in the spreadsheet was arranged into categories at the direction of legal counsel to assist in giving legal advice in the anticipation of litigation, the court found that the spreadsheet was within the scope of the work product doctrine. Yet, the court concluded that the requesting party had shown a substantial need for the spreadsheet and ordered that a redacted version of the spreadsheet be produced. 34 The court summarized its analysis by stating: The foregoing determination to order production of a redacted version of the Spreadsheet also clarifies the availability of the attorney/client privilege. The [redacted] document ordered produced is not the document communicated to counsel. What remains is merely a collection of facts, most already disclosed to Defendants. As such, it does not qualify as an attorney/client protected document. 35 Bitler Inv. Venture II, LLC v. Marathon Ashland Petroleum LLC illustrates the heightened risk of privilege waivers associated with ESI. 36 In Bitler, plaintiffs attorney communicated with his clients, Bitler and Rodenbeck, via Unbeknownst to counsel and Rodenbeck, Bitler forwarded these messages to a testifying expert. Defendants moved to compel production of these s, asserting that Rule 26 (a)(2)(b) of the Federal Rules of Civil Procedure mandated disclosure. Plaintiffs and their counsel argued that the expert s receipt of these s did not waive privilege because Rodenbeck did not consent to the forwarding of the s, the messages did not relate to the expert s opinion and the expert did not rely on these s in formulating an opinion. 38 The court ordered that the s be produced. 39 It articulated three reasons for its decision. First, Rule 26(a)(2)(B) trump[s] any assertion of work product or privilege, and materials considered by (continued on page 18) RES GESTÆ MARCH

5 E-DISCOVERY continued from page 17 the testifying expert must be disclosed even if the communications were protected by the attorneyclient privilege. 40 Second, the court found that the disclosure in the case was intentional and held that an intentional disclosure of opinion work-product to a testifying expert effectively waives the work-product privilege. 41 Lastly, the court believed that the s were relevant to the expert s opinion and should be disclosed under Rule 26(a)(2)(B). 42 Although Indiana s federal courts have not produced an extensive body of case law related to the E-Discovery Rules, the rulings to date provide clear guidance on some of the essential features of the 2006 amendments: the format for requesting and producing ESI, the ability of nonparties to shift the cost of producing ESI, and the special care that must be given to privileged communications conveyed or stored electronically. Conclusion For those Indiana litigators who do not have significant federal practices, the time to learn about e-discovery issues is here. In an order dated Sept. 10, 2007, the Indiana Supreme Court amended the Indiana Rules of Trial Procedure to address the discovery of electronically stored information. The Indiana State E-Discovery Rules became effective on Jan Lisa J. Berry-Tayman is an associate in the Business Litigation Group of Baker & Daniels, Indianapolis office, focusing her practice in the areas of E-Discovery and Record Retention. Lisa would like to thank Amanda Spratley and Paul Wolfla for their contributions to this article. Amanda was a 2007 summer associate with Baker & Daniels and is a candidate for J.D. in 2008 at The George Washington University School of Law. Paul Wolfla is a partner at Baker & Daniels. 2. Fed. R. Civ. P. 16, 26, 33, 34, and Fed. R. Civ. P. 34 (1970). 4. Fed. R. Civ. P. 34 advisory committee s note (1970). 5. Simon Property Group L.P. v. mysimon, Inc., 194 F.R.D. 639 (S.D. Ind. 2000); Long v. Anderson, 204 F.R.D. 129 (S.D. Ind. 2001); Lytle v. Ford Motor Co., Inc., No. 54C CP-0532, 2003 WL (Ind. Cir. Ct. April 19, 2003); Tracy v. Fin. Ins. Mgmt. Corp., No. 1:04-CV-00619, 2005 WL (S.D. Ind. Aug. 22, 2005); Ball v. Versar, Inc., No. IP C, 2005 WL (S.D. Ind. Sept. 23, 2005); MBNA Am. Bank, N.A. v. Cioe & Wagenblast, P.C., No. 2:05-CV-216, 2006 WL (N.D. Ind. May 19, 2006); Turner v. Resort Condos Int l, LLC, No. 1:03-CV-2025, 2006 WL (S.D. Ind. July 13, 2006); Allstate Ins. Co. v. Scroghan, 851 N.E.2d 317 (Ind. Ct. App. July 25, 2006); Dorel Juvenile Group, Inc. v. DiMartinis, No. 1:06-CV-01295, 2006 WL (S.D. Ind. Sept. 29, 2006). 6. Electronic Discovery Reference Model (EDRM), Production Node, edrm.net/wiki/index.php/production_node 7. Fed. R. Civ. P. 26(f)(3) and advisory committee s notes; the United States District Courts for the Northern and Southern Districts of Indiana have local case management forms designed to require discussion of ESI issues such as production format. 8. Fed. R. Civ. P. 34(b)(ii). 9. Pace v. Int l Mill Service, Inc., No. 205-CV-69, 2007 WL , at *1 (N.D. Ind. May 7, 2007). 10. Id. 11. Id., at * Id. 13. Id., at * Lawson v. Sun Microsystems, Inc., No. 1:07- CV-0196, 2007 WL (S.D. Ind. Sept. 4, 2007). 15. Id., at * Id., at * Id. 18. Id., at * Id. 20. Guy Chemical Co., Inc. v. Romaco AG, 243 F.R.D. 310 (N.D. Ind. May 22, 2007). 21. Id. at Id. at Id. 24. Id. 25. Id. at Id Id. at 313, n ABN Amro Mortg. Group, Inc. v. Promised Land Mortg. LLC, No. 1:04-CV-956, 2007 WL (S.D. Ind. Jan. 8, 2007). 30. See, U.S. v. White, 950 F.2d 426, 430 (7th Cir. 1991) (provides an outline of the Seventh Circuit s application of attorney/client privilege); Hickman v. Taylor, 329 U.S. 495, (1947) (provides the principles followed by the Seventh Circuit in application of the work product doctrine, also codified in Fed. R. Civ. P. 26(b)(3)). 31. ABN Amro, 2007 WL , at * Id.; see Diversified Industries, Inc. v. Meredith, 572 F.2d 596, 609 (8th Cir. 1978). 33. Id. 34. Id., at * Id., at * Bitler Inv. Venture II, LLC v. Marathon Ashland Petroleum, No. 1:04-CV-477, 2007 WL (N.D. Ind. Feb. 7, 2007). 37. Id., at Id., at * Id., at * Id., at *3 (citing Karn v. Ingersoll-Rand, 168 F.R.D. 633 (N.D. Ind. 1996). 41. Id., at *5 (quoting Simon, 194 F.R.D at 647). 42. Id., at * rule-amendments/index.html 18 RES GESTÆ MARCH 2008

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