ESI Discovery in Florida and Federal Courts

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1 ESI Discovery in Florida and Federal Courts Andrew S. Kwan Beasley Kramer & Galardi, P.A. West Palm Beach, Florida (561) Today, instead of filing cabinets filled with paper documents, computers store bytes of information in an "electronic filing cabinet." Information from that cabinet can be extracted, just as one would look in the filing cabinet for the correct file containing the information being sought. - Menke v. Broward County School Bd., 916 So. 2d 8, 10 (Fla. 4th DCA 2005). Part 1: Introduction to Electronically Stored Information ( ESI ) and E-Discovery I. ESI is electronically stored information, but what does that actually mean? A. Federal Rule of Civil Procedure 34(a)(1)(A) ESI includes writings... and other data or data compilations... stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form. B. Florida Rule of Civil Procedure 1.350(a) Party can discover any documents (which includes ESI) from which information can be obtained. Party can require translation of that ESI by the party to whom the request is directed through detection devices into reasonably usable form. C. Practical definition: ESI is information that is stored in a format where it can only be read with the help of a computer or other electronic device. D. ESI has several unique characteristics: 1. The information is easy to create, store, and destroy. 2. Numerous perfect copies of the information can be made. 3. The information can be transmitted to others easily.

2 4. Appropriate computer hardware and software is needed to read and search through the information (which may include the translation contemplated by the Florida and Federal Rules of Civil Procedure). II. How ESI discovery is (and isn t) different from discovery of hardcopy documents A. Differences 1. Volume of Information Since ESI can be created instantly and takes up little physical space, there is usually a lot of it. Even a single user s computer hard drive can contain hundreds of gigabytes of information the equivalent of thousands of bankers boxes worth of printed pages. A company with 100 employees, who each send 100 s per week, will end up with 500,000 distinct s per year. 2. Methods of Preservation Special steps must be taken in order to preserve ESI for discovery in a manner consistent with applicable law. For instance, in many cases, ESI is automatically deleted or overwritten from a computer system (e.g., s that are over a certain age). A proper litigation hold must suspend these deletion procedures to the extent that they would reach relevant data. 3. Methods of Collection/Harvesting Production of any significant amount of ESI usually requires an expert (perhaps a third-party vendor, or the IT department of a large client) to forensically harvest data from the hard drives, servers, cell phones, etc. which might contain relevant information. 4. Form of Production - Unlike paper information, discovery of ESI involves selection and negotiation of a file format in which to produce the ESI. See Fla. R. Civ. P (b); Fed. R. Civ. P. 34(b)(2)(E). Information can be produced in the original form it was kept in (such as a Microsoft Word.doc or Excel.xls file). Alternatively, a party can produce images, 2

3 which are pictures or screenshots of what is contained on the original files. Whatever the form chosen, the produced files may then be loaded onto a document review platform or document management system, such as Relativity, for review. 5. Cost Due to the volume, specialized technology, and expertise necessary to preserve, collect, produce, and review electronically stored information, ESI discovery is invariably more expensive than discovery of paper documents. B. Similarities 1. Preservation Obligations Under federal and Florida law, a party is obligated to preserve potentially relevant ESI. See, e.g., Strasser v. Yalamanchi ( Strasser II ), 783 So. 2d 1087, (Fla. 4th DCA 2001); Zubulake v. UBS Warburg LLC ( Zubulake IV ), 220 F.R.D. 212, (S.D.N.Y. 2003). a. The preservation obligation is sometimes tempered with a party s unfamiliarity with technology. Cont l Group, Inc. v. KW Prop. Mgmt., LLC, 622 F. Supp. 2d 1357, 1373 (S.D. Fla. Apr. 22, 2009) (employee inadvertently destroyed metadata after notice of litigation; court declined to grant adverse inference sanction, as employee lacked computer knowledge). b. Negligent preservation, in and of itself, does not supply the bad faith necessary for a spoliation sanction. Fla. R. Civ. P (e) ( Absent exceptional circumstances, a court may not impose sanctions for failure to provide ESI lost as a result of the routine, good faith operation of an electronic information system ); Managed Care Solutions, Inc. v. Essent Healthcare, Inc., 2010 WL (S.D. Fla. Aug. 23, 2010). (negligent failure to suspend routine document destruction policy did not justify default judgment); Southeastern Mechanical Svs., Inc. v. Brody, et al., 2009 U.S. Dist. LEXIS (M.D. Fla. July 24, 2009) (denying spoliation sanctions despite party s negligent, routine deletion of documents as part of retention policy). 2. Method and Requirements for Requesting ESI Both the Florida and Federal Rules of Civil Procedure (and most other jurisdictions) allow ESI to be requested in the same manner as paper discovery, without any special limitations. See Fla. R. Civ. P ; Fed. R. Civ. P

4 3. Relevance and Privilege The relevance of ESI is governed by the same standard as paper documents. The privileges associated with ESI can be asserted, protected, and waived in the same way as conventional discovery. See, e.g., Amersham Biosciences Corp. v. PerkinElmer, Inc., 2007 U.S. Dist. LEXIS 6841 (D.N.J. Jan. 31, 2007) (finding that ESI was privileged on its face, and remanding to magistrate judge to determine adequacy of producing party s precautions against inadvertent disclosure). 4. Admissibility ESI is admissible, but, like any other document, must be properly authenticated before being admitted into evidence. See Lorraine v. Markel Am. Inc. Co., 241 F.R.D. 534 (D. Md. 2007) (finding that parties failed to authenticate s in summary judgment pleadings, and analyzing requirements for admission of ESI under the Federal Rules of Civil Procedure). Part 2: Basic ESI Discovery Procedures and Practices III. How to Request ESI Discovery A. During initial pretrial conferences with opposing counsel, get an idea and reach agreement on what relevant ESI is possessed by each party. The parties can make life easy for each other by specifying particular computers, databases, or media that should be searched for relevant information. B. As with all discovery requests, a targeted request is better. If possible, ask for specific documents, or clearly defined classes of documents (such as all draft contracts created by X, or all s between A and B). Contention requests ( all documents which support your allegation that ) are permissible, but are vulnerable to objections and/or cost-shifting, especially if there is a lot of ESI to sift through. C. Requesting a complete copy of a party s computer hard drive(s) is usually overbroad and unduly burdensome, unless there is evidence that the producing party has failed to comply with a prior conventional ESI discovery request. 1. Strasser v. Yalamanchi ( Strasser I ), 669 So. 2d 1142, 1145 (Fla. 4th DCA 1996) (Pariente, J.). The Fourth DCA denied plaintiff s request for unrestricted access to defendant s computer system to search for purged data, as some of the information in the system was privileged and once confidential information is disclosed, it cannot be taken back. However, if plaintiff could present evidence to demonstrate the likelihood of retrieving purged information, and if the trial court finds that there is no other less intrusive manner to obtain the information, then the computer search might be appropriate. Id. 4

5 2. Floeter v. City of Orlando, 2006 WL (M.D. Fla. Apr. 14, 2006). The plaintiff requested entry upon land under Fed. R. Civ. P. 34 to inspect computer hard drives for relevant documents, to which the defendant police department objected. The court denied the request for inspection, and noted that inspection was not warranted unless there was a showing that documents had been requested which the police department had failed to produce. See also Balfour Beatty Rail, Inc. v. Vaccarello, 2007 WL (M.D. Fla. Jan. 18, 2007) (denying motion to compel production of hard drives because of overbreadth and lack of justification, such as prior failure to produce discovery). Cf. Kilpatrick v. Breg, Inc., 2009 WL (S.D. Fla. June 22, 2009) (when it was unclear whether additional documents were still in party s computer system, requesting party could hire outside vendor to conduct another search, subject to certain conditions). D. Decide on the format you want the ESI to be produced in. If no format is specified, the responding party must produce the ESI in the form in which it is ordinarily maintained (i.e., native files) or in a reasonably useful form. See Fla. R. Civ. P (b); Fed. R. Civ. P. 34(b)(2)(E)(ii). Comparison of Production Formats Native File PDF TIFF Paper Keyword Search/Sort Excellent Good Poor None Bates Stamp/Redaction Hard Easy Easy Easy Software Accessibility Varies Good Good N/A Metadata Preservation Yes (usually) Sometimes No (usually) None E. Set up a document review platform. Unless the amount of ESI being produced is very small (say, a single user s about a particular subject), it is usually necessary to load the production onto a document review platform, where individual documents can be searched, sorted, and tagged. IV. How to Respond to ESI Discovery A. Preserve ESI as soon as there is a reasonable chance of litigation. In the absence of a contract or statute, Florida law imposes a duty to preserve evidence only when a discovery request is received, but early preservation nevertheless avoids potential problems down the road. B. Conduct a scoping conference. The scoping conference is an early meeting with the client, client IT, and/or third party electronic discovery vendors to plan a 5

6 response to ESI discovery requests. The objective is to catalog all potentially relevant ESI, determine what is reasonably accessible, and how much it will cost to harvest and produce. 1. The client should be prepared to inventory and catalog the physical devices and locations where ESI might be located, the custodians in charge of that ESI, and what generally is stored in each location. This can include cloud storage, web servers, and offsite backups. 2. In particular, reasonably accessible ESI can include the client s accounts with third party providers, such as AOL and Gmail. See Infinite Energy, Inc. v. Thai Heng Chang, 2008 WL (N.D. Fla. Aug. 29, 2008) (ordering defendant to attempt to recover old Yahoo account, and noting that if s could not be recovered, defendant s failure to disclose account would be considered for discovery sanctions). 3. The conference is a good time to review the client s document retention policy if you are unfamiliar with it. Is it effective at disseminating retention information to employees? What procedures are in place to suspend or modify automatic deletion of files? 4. Consider using early case assessment software and/or consultation services. Early case assessment helps a client know what ESI is actually out there, which may substantially reduce discovery costs. By way of example, early case assessment programs can visualize threads and give summaries of the total amount of data and types are on a system. C. Harvest the ESI. After the scope of the ESI production has been defined, the actual collection of the ESI is best performed by a third-party expert, who will use special software and hardware to forensically extract the ESI. D. Negotiate a different production format if the requesting party s format is burdensome. In general, producing documents in a format that cannot be reasonably searched or indexed causes headaches for everyone, and may be objectionable. In re Seroquel Products Liability Litigation, 244 F.R.D. 650 (M.D. Fla. 2007) (sanctioning party for producing ESI in gigantic TIFF images, rendering the production inaccessible and unusable). E. Thoroughly document all the steps taken to preserve, harvest, and produce the ESI, as it might become an issue later on. Bank of Mongolia v. M & P Fin. Serv., Inc., 2009 WL (S.D. Fla. Apr. 24, 2009) (defendant failed to respond to discovery and could not explain ESI search methodology, so court appointed independent expert to image defendants computer system). 6

7 V. Cost-Shifting Part 3: Shifting and Awarding ESI Discovery Costs A. Cost-shifting means that the party seeking ESI discovery is forced to bear some of the expense necessary to produce the ESI. This is a departure from the usual rule that the producing party pays all costs associated with production. B. Cost-shifting may be warranted where there are documents which are potentially relevant, but which are very expensive, as a practical matter, to produce. Courts have devised various balancing tests to determine when costs should be shifted: 1. Rowe Entm't, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421, 429 (S.D.N.Y. 2002). Eight-factor test to determine whether costs should be shifted (all factors are weighted equally): a. Specificity of the request b. Likelihood of discovering critical information c. Availability of information from other sources d. Purposes for which responding party keeps the data e. Relative benefits to the parties of obtaining the information f. Total cost of production g. Relative ability and inclination of each party to control costs h. Resources available to each party 2. Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003) ( Zubulake I ). In Zubulake I, UBS possessed relevant s on backup tapes that had not been produced, but objected to producing them because it would be too expensive. District Judge Shira Scheindlin first held that the backup tapes were inaccessible, meaning they could not be readily used without significant labor on the part of UBS to restore them to usable form. Since the tapes were inaccessible, cost-shifting could be considered, and Judge Scheindlin balanced the costs and benefits of discovery using a modified Rowe test. The Zubulake factors, from most important to least important, are: a. Specificity of the request b. Availability of information from other sources c. Total cost of the discovery relative to amount in controversy d. Total cost of the discovery relative to party resources e. Relative ability/incentive for each party to control discovery costs f. Importance of the issues at stake in litigation g. Relative benefit to a party in obtaining the discovery. C. The cost-shifting accessibility standard analyzed in Zubulake is now embodied in Federal Rule of Civil Procedure 26(b)(2)(B): A party need not provide 7

8 discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. VI. Award of ESI expenses as prevailing party attorney s fees or costs. A. Courts are split on whether ESI discovery expenses can be recovered under Federal Rule of Civil Procedure 54(d) and 28 U.S.C. 1920(4) ( Section 1920(4) ), which allows prevailing parties to recover [f]ees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case. 1. Broad interpretation of Section 1920(4) to cover e-discovery costs: In re Aspartame Antitrust Litigation, 817 F. Supp. 2d 608, 615 (E.D. Pa. 2011) (costs included creation of litigation database, storing data, imaging drives, keyword searches, data extraction, and technical support); Tibble v. Edison Int l, 2011 WL (C.D. Cal. Aug. 22, 2011) (e-discovery costs were necessarily incurred to respond to discovery requests) 2. Interpretation of Section 1920(4) to exclude e-discovery costs that are not analogous to making copies : See Country Vintner of North Carolina, LLC v. E. & J. Gallo Winery, Inc., 718 F. 3d 249, (4th Cir. 2013) (costs for indexing, searching, and extracting ESI were not recoverable, but costs for conversion to TIFF and PDF were recoverable); CBT Flint Partners, LLC v. Return Path, Inc., 737 F.3d 1320, (Fed. Cir. 2013) (costs for imaging data were recoverable, but costs for activities like searching, data extraction, and deduplication); Race Tires America, Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158, (3d Cir. 2012) (costs included conversion of native files to TIFFs, scanning documents to create duplicates, and transferring VHS tapes to DVD). 3. Narrow interpretation of Section 1920(4) to exclude e-discovery costs: Klayman v. Freedom's Watch, Inc., 2008 WL (S.D. Fla. Sept. 12, 2008) (refusing to award costs for third-party vendor to collect, preserve, and image ESI; defendant failed to demonstrate costs were necessary under Section 1920(4)). B. Outsourced ESI discovery review can be included in attorney s fees awards. For instance, in Gabriel Technologies Corp. v. Qualcomm Inc., 2013 WL , at *10 (S.D. Cal. Feb. 1, 2013), the district court approved, as part of defendants attorney s fees, $2.8 million in fees associated with a document review algorithm generated by an outside vendor, in part because the computer-assisted review reduced the overall fees and attorney hours required to produce documents. 8

9 Part 4: Professionalism and Persuasiveness in ESI Discovery Disputes VII. Collaboration A. Both the Florida and Federal Rules expect the parties to meet and confer about the discovery of ESI after a case is filed; under the Federal Rules, this pretrial conference is a requirement. See Fla. R. Civ. P (a)(5) through (a)(7); Fed. R. Civ. P. 26(f)(3)(C). B. The meet-and-confer should hopefully pin down the overall scope of ESI discovery, including potential custodians, agreed timeframe for searching documents, and geographic/subject matter limitations on document production. C. Either at the meet-and-confer or after initial disclosures, the parties might agree to a joint ESI discovery plan or protocol governing the production of ESI. 1. For instance, if certain ESI is relevant to both parties cases, it can make sense to share costs to set up a single database to host the ESI, rather than setting up two different databases containing the same information. 2. Another way of reducing costs is by phasing discovery, such that paper documents are exchanged first, then (if necessary) easily accessible ESI, then (if necessary) inaccessible ESI. D. The use of clawback and quick peek agreements allows parties to produce large amounts of ESI without having to review every single document for privilege. See, e.g., Bd. of Trustees, Sheet Metal Workers National Pension Fund v. Palladium Equity Partners, LLC, 722 F. Supp. 2d 845, (E.D. Mich. 2010). 1. Clawback : A clawback agreement is designed to protect against inadvertent production of privileged documents by allowing the parties to force the return or destruction of such materials ( clawback ) after they have been produced. 2. Quick peek : A quick peek agreement allows ESI to be produced to the opposing party before being reviewed for privilege, but without waiving such privilege. The agreement requires the reviewing party to notify the producing party about documents which appear privileged after a preliminary relevance review ( quick peek ). VIII. Motion Practice Some Tips from the Trenches A. Be sure you are familiar with the local rules, discovery handbooks, model orders, and judicial instructions applicable in your court. Because of continuously changing technology, the practices regarding ESI tend to be more unsettled than other discovery. 9

10 B. If arguing that certain ESI should be produced, offer a specific example of how the ESI could help you prove your case. This is especially true when arguing for the production of relevant metadata (for example, an agreement stated by a person at a certain time might show intent, whereas the same agreement without the timestamp might be ambiguous). C. If arguing that certain ESI is irrelevant, describe what ESI and other discovery your client has already produced. Courts are much more likely to limit further discovery if your client has not been stonewalling production. D. If arguing that production of ESI is unduly burdensome, comprehensively describe the steps needed to produce ESI. A judge may not be familiar with the enormous expense of extracting, imaging, processing, and producing ESI. A detailed affidavit from the client or third-party discovery vendor is usually necessary to support a motion for protective order or a response to a motion to compel. E. If some ESI is privileged, but it would be too expensive to log it file by file or document by document, it is sometimes acceptable to serve categorical privilege logs, which assert privilege over certain categories of documents. See In re Motor Fuel Temperature Sales Practices Litig., 2009 WL , at *3 (D. Kan. Apr. 3, 2009); Orbit One Commc ns, Inc. v. Numerex Corp., 255 F.R.D. 98, 109 (S.D.N.Y. 2008). F. If seeking cost-shifting and/or an award of ESI costs, describe in detail each and every cost associated with the ESI production, taking care to separate costs into as many discrete categories as possible. If the court is inclined to shift some costs but not others, or to separate out taxable costs from nontaxable costs, a detailed inventory will ensure that some recoverable costs do not get lost in the shuffle. 10

11 Appendix A: ESI Discovery Resources Sedona Conference publications on ediscovery: The Sedona Conference is a nonprofit institute which studies law and policy on a variety of topics, including electronic discovery. Their publications are free and available online, and include numerous commentaries, best practices, and guidance on a host of ESI discovery topics. Of particular interest for litigators is the series of capsule summaries entitled, Federal Court Decisions Involving Electronic Discovery, edited by Kenneth J. Withers. Managing Discovery of Electronic Information: A Pocket Guide for Judges, Second Edition (2012): This handbook is published by the Federal Judicial Center and available for free online in PDF form (the second edition updates the first edition, published 2007). While the information is aimed at judges and law clerks, the Pocket Guide provides a good overview of electronic discovery under the Federal Rules of Civil Procedure. Bow Tie Law: A blog written by attorney Joshua Gilliland that offers news and commentary on federal and state ESI discovery decisions. Electronic Discovery Law Blog (ediscoverylaw.com): A blog published by K&L Gates LLP which is regularly updated with recent caselaw, news, and updates about the world of ESI discovery. Applied Discovery Case Summaries: Hosted by a large e-discovery vendor, this website collects electronic discovery opinions from around the country, sortable by topic or jurisdiction. Discovery Resources (discoveryresources.org): This site has white papers on various topics, webcasts, and a very straightforward glossary of e-discovery terms. Model Order Regarding E-Discovery in Patent Cases: This Model Order, while not officially adopted by the Federal Circuit, illustrates several considerations in ESI discovery orders, such as cost-shifting, production of metadata, and production. The Model Order contemplates a two-phase production where basic documents are exchanged before extensive discovery takes place. District courts such as the Eastern District of Texas have also developed their own model orders. 11

12 Appendix B: Annotated ESI Glossary Cloud ( the cloud ): General term for a network of servers which stores data and runs applications as though it were one computer system (which is why the cloud is sometimes synonymous with the Internet ). Storing files or running applications on the cloud means that the file or application has no fixed location it may be stored or run from any server/computer within the cloud, or it may even be split ( distributed ) among several servers in the cloud. The discoverability of cloud documents, which are arguably within the control of the party with access to the cloud, is an emerging subject. See generally Steven C. Bennett, James M. Daley, Natascha Gerlach, Storm Clouds Gathering for Cross-Border Discovery and Data Privacy: Cloud Computing Meets the U.S.A. Patriot Act, 13 SEDONA CONF. J. 235 (Fall 2012). Custodian: A person having control of an electronic file folder, directory, database, or computer system. For example, the custodian of a desktop workstation is typically the person who logs on to that desktop, while the custodian of an account is the owner of that account. A single custodian might have access to multiple directories, workstations, and devices; or there might be multiple custodians associated with a computer system. Identification of relevant custodians (and the ESI they had control of) is one of the first steps in responding to an ESI discovery request. De-duplication ( de-duping ): The identification and removal of exact or near-exact copies of files from a party s ESI production. De-duplication can be categorized as vertical, which eliminates copies with respect to a single custodian or system (i.e., a spreadsheet saved in multiple locations in a single user s computer would only be produced once), or horizontal, which eliminates copies shared by multiple custodians or systems (i.e., a memo ed to multiple people on a network would only be produced once). De-duplication is generally desirable, as it saves the parties the effort of reviewing multiple copies of the same document. Keyword Search: A method of searching documents that uses one or more terms specified by the user. Similar to searching for caselaw on Westlaw, Lexis, or other databases, there is a tension between capturing all possibly relevant documents, and capturing too many to actually review. See, e.g., Ross, et al. v. Abercrombie & Fitch Co., 2008 WL (S.D. Ohio Oct. 27, 2008) (123 search terms provided by the plaintiffs yielded 1.3 million pages of largely irrelevant documents; the court denied motion to compel production of entire document set and advised the parties to improve the precision of the searches). Metadata: Information about a computer file that is either contained within the file itself, or stored separately from the file (metadata literally means data about data ). Metadata can provide important details, such as the file s author or when it was last modified. Metadata can also be substantive, which reflects changes made by a human user, including prior edits or editorial comments (e.g., Microsoft Word redlines). Sorting documents by their metadata can 12

13 greatly speed up document review. Metadata is usually not visible when opening or editing the file in an application. Metadata may be discoverable, if relevant and properly requested. See Bray & Gillespie Management LLC, et al. v. Lexington Ins. Co., et al., 2009 WL (M.D. Fla. March 4, 2009) (court sanctioned producing party who converted native files to TIFF images but failed to capture relevant metadata as requested); Aguilar v. Immigration & Customs Enforcement Div. of U.S. Dep t of Homeland Sec., 2008 WL (S.D.N.Y. Nov. 21, 2008) (court found that metadata, though discoverable, was only marginally relevant, and would only order production if plaintiff assumed all costs); Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 641 (D. Kan. 2005) (court criticized litigant who scrubbed spreadsheets of metadata, as those spreadsheets were not produced as they were kept in the ordinary course of business). But cf. Dahl v. Bain Capital Partners, LLC, 655 F. Supp. 2d 146, 149 (D. Mass 2009) (court allowed party to produce only 12 fields of metadata associated with s and other documents, rather than all metadata); Kay Beer Distributing, Inc. v. Energy Brands, Inc., 2009 WL (E.D. Wis. June 10, 2009) (absent agreement or court order, there is no obligation to produce metadata unless it is material ); Michigan First Credit Union v. Cumis Insurance Society, Inc., 2007 WL (E.D. Mich. Nov. 16, 2007) (production of metadata would be overly burdensome with no corresponding evidentiary value ); Ky. Speedway, LLC v. Nat l Ass n of Stock Car Auto Racing, Inc., 2006 WL , at *8 (E.D. Ky. Dec. 18, 2006) ( emerging standards of electronic discovery appear to articulate a general presumption against the production of metadata ). MD5: A process used to verify that two pieces of data are the same. Running the MD5 algorithm across a piece of data (such as the contents of a word processing file) results in a unique numerical value, known as an MD5 hash. If this MD5 hash is identical to another file s MD5 hash, then the two files are identical. See also De-duplication. Native File or Native Format: A native file is one that is saved or produced in the format in which it was kept prior to litigation (such as a Microsoft Excel spreadsheet). Producing files in native format may be less costly, but these files are generally harder to Bates stamp and redact, as compared to static images. The Florida and Federal Rules of Civil Procedure specify native file production as the default format unless overridden by the requesting party, while also allowing production in other formats. Many courts prefer native production, as it preserves relevant metadata and is easily searched and sorted by the discovering party. See, e.g., In re Porsche Cars N. Am., Inc. Plastic Coolant Tubes Prods. Liab. Litig., 279 F.R.D. 447, 449 (S.D. Ohio 2012). ( This Court has expressed a preference for the production of electronically stored information in its native format. ) OCR ( optical character recognition ): The process of taking an image (such as from a scanned document) and converting any text on the image into computer-readable text; the 13

14 computer recognizes the parts of the image that look like text and converts them. Depending on the complexity and quality of the OCR system, the conversion may result in an imperfect translation of the text ( apple might be converted ). OCR conversion can be extremely costly, but necessary in order to provide a searchable document. See Proctor & Gamble Co., v. S.C. Johnson & Son, Inc., 2009 U.S. Dist. LEXIS (E.D. Tex. Feb 19, 2009) (denying cost-shifting of $200,000 OCR expense necessary to provide documents in searchable TIFF format). PDF ( Portable Document Format ) file: File format for electronic documents. A PDF file can preserve the text and graphics within a document, regardless of where the original document came from (scanned from copier, converted from a word processing file, etc.). PDFs can be read on most devices, either by default or with the use of free software. PDFs which contain embedded text are searchable, either by directly preserving text from the original document (possible with some software converters), or by OCR. These characteristics make PDFs the de facto standard for exchanging documents. See Rahman v. The Smith & Wollensky Restaurant Group, Inc., 2009 WL (S.D.N.Y. Mar. 18, 2009) (absent a specific format request, PDF format is presumptively a reasonably useful form). Predictive Coding: Part of what is termed technology-assisted review, which integrates computer software into the process of human document review. In predictive coding, a human reviewer looks at a seed set of documents. The reviewer makes determinations on the seed set (i.e., what is relevant, irrelevant, privileged, nonprivileged, etc.) which are saved. The computer learns these determinations and applies them across the entire document set. The results are then checked by human review; these determinations can be fed back into the system for even more precision. By nature, predictive coding is both over-inclusive and under-inclusive the computer will misidentify some documents as relevant or irrelevant, depending on the size of the seed set and the sophistication of the software. However, courts usually allow it, as the amount of ESI today is becoming so large that no amount of human review with ordinary keyword searches could produce relevant documents. See Da Silva Moore v. Publicas Groupe SA, 2012 WL (S.D.N.Y. Feb. 24, 2012) (large volume of ESI necessitated computer-assisted review as opposed to keyword searching); aff d, 2012 WL (S.D.N.Y. Apr. 25, 2012). PST file: File format for storing Microsoft Outlook information. In discovery, these files are commonly searched to find responsive s. The underlying PST file may be located in a user s workstation, a server, or the cloud. Server: A computer that other computers connect to over a network. A server can store files for those other computers ( file server ) or store, send, and/or receive ( server ), 14

15 among other things. A server is typically a key source of information for a business, and must be searched in order to comply with a party s discovery obligations. See, e.g., Canon USA, Inc. v. SAM, Inc., 2008 WL (E.D. La. June 20, 2008) (information on server was reasonably accessible, even if defendant did not have ability to search the server himself; court ordered defendant to hire a forensic computer expert to conduct the search). Static Image: A static image (or simply image ) refers to any read-only file format which petrifies data previously stored in native file form. Static images allow for easier redaction and Bates numbering. It can be difficult to make useful static images of certain filetypes. For instance, the rows and columns of a Microsoft Excel spreadsheet may display strangely when converted to a PDF. TIFF ( Tagged Image File Format ) or.tif file: File format for storing images and graphics. TIFFs are commonly used by designers, artists, and photographers. Unlike a PDF or word processor file, TIFFs contain no embedded text, and usually cannot be searched unless additional work is performed (such as OCR). Because of this limitation, producing documents as TIFF files is generally less useful than other formats. See Covad Comm. Co. v. Revonet, Inc., 2008 WL (D.D.C. Dec. 24, 2008) (hard-copy printouts or.tif files were not reasonably useable); Goodbys Creek v. Arch Inc. Co., 2008 WL (M.D. Fla. Sept. 15, 2008) (to the extent that electronic files produced were searchable before conversion to TIFF format, the production was not in reasonably useable form). 15

16 About the Author Andrew S. Kwan Beasley Kramer & Galardi, P.A. B.S. in Computer Engineering, University of Florida J.D., University of Florida Intern, U.S. District Judge Kenneth A. Marra Law Clerk, U.S. Magistrate Judge Linnea R. Johnson Areas of Practice Business entity dissolutions and disputes Business torts Contract litigation Federal civil litigation Contact Beasley Kramer & Galardi, P.A. 505 S. Flagler Drive West Palm Beach, Florida Phone: (561)

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