ProSeLex White Page: The Basics on Handling Attachments in e-

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1 ProSeLex White Page: The Basics on Handling Attachments in e- Discovery attachments can be particularly problematic items in electronic discovery. One wrong move in collection can divorce attachments from their s. Improper deduplication across a matter without regard to the chain can also wreak havoc on attachments. In addition, various platforms store attachments differently, which is a common source of errors in production. With the enormous volume of business, communications done in these days, s and their attachments are frequently very important to a case. Versions of disputed contracts, memos proving senders or recipients were on notice and embedded chains often reside as attachments. Litigants underestimate attachments at their peril. In the last few years, courts have become more familiar with the underlying technology of attachments. Arguments courts accepted only three years ago for mishandling attachments vendor errors during collection or processing, mistakes with archiving systems will not hold water in many courts today. Other than document review, nothing in e-discovery is as costly or time-consuming as an order to re-produce a bad production. It is imperative for the producing and the requesting party to understand the Court s expectations for attachment productions. Key Findings s must be produced with their attachments Producing attachments in the usual course of business means s and attachments are organized by custodian or relevant folder and in chronological order attachments must be in a reasonably usable form, meaning once searchable data cannot be produced in an unsearchable format Produce s with Attachments The general rule is s should be produced with the corresponding attachments. Failing to produce s and attachments together may to lead to discovery delays, orders to re-produce the data sets or even sanctions. In a 2008 case, the plaintiff's failure to produce attachments was one example of its sanctionable misconduct. The dubious practice of producing s without attachments in federal discovery has not gone unnoticed by other courts. 1

2 Unfortunately, even the best laid production plans can have undesired results. Produced attachments are sometimes divorced from their related s. In such a circumstance the court must decide if the producing party must re-produce the s with the attachments or provide some other means of associating s with their attachments and, if so, who will pay for it. Separated Attachments The production of s and attachments that do not correspond is considered flawed. Normally one would expect that an and its attachment would have been kept together in the regular course of business, and the production of said documents would have followed suit. 2 A party producing attachments separated from their corresponding s risks an order to perform the production again, and even risks sanctions if the failure is egregious enough. The courts may permit some stopgap solutions in lieu of a full re-production. For example, in some instances a searchable index or other solution that matches the attachments to their corresponding s could be an acceptable alternative to full re-production. Stopgap solutions, however, should be the exception rather than the rule, particularly when it is more efficient to produce s together with their attachments. Producing parties should not press their luck. The goal should always be to produce with attachments intact. Flirting with Disaster If re-production would be staggering, the requesting party may have a mess to sift through thousand of legal documents. In CP Solutions v. General Electric, the Court did not require the defendants to re-perform the entire production from the original PSTs in view of privilege concerns and the staggering number of additional documents this would entail. 3 However, the court ordered the defendants to provide the plaintiff with the information, data, or software needed to match the s with their attachments. As a consolation gift to the plaintiff, the court admonished the defendant, Attachments should have been produced with their corresponding s. The Court appreciates the fact that the attachments were created with different software programs, but that does not provide Defendants with an excuse to produce the s and attachments in a jumbled, disorganized fashion. 4 Nevertheless, the Court s words were likely cold comfort to the requesting party ultimately left to piece together s and attachments via the unspecified means the defendant provided.

3 In the broad view of attachment cases, CP Solutions should be seen as an outlier and a warning. The case is from 2006, making it a veritable dinosaur in e-discovery evolution, and is already showing its age. The arguments about the difficulty of separating privileged documents from the PSTs would likely not work in most courts today. Recent advances in tools and techniques, and even changes in the rules of evidence, weaken such arguments. A searchable index is not enough if it places an unreasonable burden on the requesting party. PSEG Power v. Alberici Construction provides a more sophisticated discussion of which party should bear the burden of fixing a production with separated attachments. 5 PSEG is one of the more frequently cited cases in this corner of law. The case involves a construction contract dispute where the plaintiff, PSEG, produced 3,000 s in hard copy that, due to an incompatibility with their vendor's software, were divorced from their attachments. Although PSEG attempted to produce a searchable spreadsheet index of the s and attachments, the process proved very timeconsuming and ineffective for the requesting defendant. The defendant demanded that the s be reproduced from the original data collection of 750 GB, at an estimated cost of $30,000, according to the defendant, or $200,000, according to PSEG. The court ordered PSEG to re-produce the and attachments and bear the cost. The court found that the manner in which the information was originally produced attachments detached from their s places an unreasonable and untenable burden on the requesting party. All of the electronic information still exists... Attachments to s are important and useful and may assist [the defendant] in presenting admissible evidence as to its Counterclaims. 6 Quick Tip: If you are going to produce s with separated attachments (not recommended), the method for pairing those attachments had better be fairly fast and easy to use. If the solution creates an unreasonable burden for the requesting party, you will likely bear the cost of re-producing. Be Careful with Archiving archiving systems can be powerful tools for managing large volumes of communications, reducing storage space, and even managing legal holds and locating responsive s. However, some systems may store s separately from their attachments, making retrieval difficult and time-consuming. Even new systems can make retrieval difficult if not used properly. Make sure that those specifying the requirements for archiving systems are aware of the possible e-discovery needs before selecting and implementing a solution. In addition, consult e-discovery experts who understand the requirements of your intended review platform before beginning the collection process. Nothing makes a collection more costly or time-consuming than having to do it twice.

4 Keyword Culling Conundrum How s and attachments are indexed in the archiving system can complicate keyword-culling methods. In the interest of saving server space, some IT professionals may set up an archive system to index only the text for searching, leaving the attachments out of the index. If only the s are indexed, potentially responsive, document attachments will not turn up in the results of a keyword search. This can produce false negatives or artificially low hit rates on keyword searches. Ideally, the archive will be configured to index both the s and the attachments. It is important to communicate the e-discovery requirements to those responsible for configuring the archive. Form of Production The above discussion about separated attachments is a subset of the greater issue known as form of production. Form of production relates to the order, categorization, labeling, and data format of the produced s and attachments. Each of these issues is a potential point of contention, especially in a large-scale production. The courts frown upon what is often termed a data dump. This is the electronic equivalent of shuffling reams of files and dumping them on the requesting party. This tactic not only makes finding relevant information more difficult for the other side, but also more costly and time-consuming. Organizing the Production Unless otherwise stipulated, FRCP 34(b) (2) (E) (i) permits the responding party to produce documents or electronically stored information as they are kept in the usual course of business. Alternatively, the production must be organized and labeled in a way that corresponds to each production request. Generally, however, the respondent is required to produce via one method or the other. If a party produces s and attachments as they are kept in the usual course of business, that party should not also need to correlate each document to the specific production requests. Quick Tip: The responding party may choose to organize the production of s and attachments as kept in the usual course of business or to correspond with each production request. 7

5 Usual Course of Business The key here is to organize s by custodian, in chronological order and with corresponding attachments. In MGP Ingredients v. Mars, the court denied the plaintiff's motion to compel the defendant to relate Bates numbers to each corresponding document request. The defendant initially produced messages "arranged by custodian and then placed in chronological order as found in the custodian's mailbox. If an had an attachment, the attachment was provided directly behind the appropriate . 8 The court held that the defendant produced the files as they were kept in the usual course of business and could not be compelled to produce them a second time organized differently. Avoiding Additional Organization Valeo Electrical Systems v. Cleveland Die expands on the discussion in MGP Ingredients. Much like the plaintiff in MGP Ingredients, the defendant in Valeo moved to compel further organization of responsive documents to correlate with production requests. The defendant claimed each of thousands of files on 15 CDs produced had to be manually opened and searched, and that the files were named innocuously to frustrate review. The court, however, found that the plaintiff's productions were adequate after a few supplemental indexes were produced. [Plaintiff] produced documents as kept in the usual course of business... produced s and other electronically stored information (ESI) in the order that they were found on the hard drive of each document's custodian... [and] produced attachments directly following the corresponding . 9 Only in exceptional circumstances have some courts compelled a producing party to further organize its documents... A large volume of documents does not, without more, justify imposing additional organizational burdens on the producing party... Here, Defendant has not demonstrated any exceptional circumstances warranting Plaintiff to produce anything further now that the supplemental Excel Index has been produced along with the earlier short table indicating the custodian and Bates number range. 10 Quick Tip: Avoid the burden of additional file organization by carefully producing documents as they are kept in the usual course of business. To satisfactorily produce in the usual course of business, organize by custodian or relevant folder, in the order found on the server/hard drive or chronologically, and with attachments either connected to or directly following the corresponding .

6 Reasonably Usable Form Organization of the production is not the only requirement of FRCP 34(b)(2)(E). One cannot simply produce a nicely organized pile of indecipherable rubbish, nor can one alter the format of the documents in such a way as to make review more burdensome. FRCP 34(b)(2)(E)(ii) requires that, if a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. 11 Bottom line: the production must be reasonably usable. From Searchable to Unsearchable is Unreasonable Searchability is a major factor in determining whether the form of production is usable. In short, if the s and attachments were kept in a searchable form, the production must also be searchable. In White v. Graceland College, the defendants were compelled to re-produce s and attachments in native format after originally producing them in paper form. The court cited the advisory committee notes for the 2006 FRCP amendments: [I]f 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. 12 The Court Continued: The Court finds that Defendants failed to produce the s and attachments either in 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 s 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 s (2006) amendments to Rule 34 allows the Defendant the option to freely convert electronically stored information from the original format, however, maintaining its integrity during the conversion process at the request of Plaintiff through the litigation process. 13 The holding of White is not limited to circumstances when a party converts ESI to paper. The same analysis will apply to any format that degrades or eliminates the searchability of the and attachments. For example, TIFF images of the documents without the associated searchable text files are functionally as unsearchable as paper. The searchability of the production must be a consideration when planning an e-discovery project.

7 Quick Tip: Keep the production formats searchable or bear the risk of re-producing in a second format. Summary s and their attachments make up a large portion of the total data handled in most e-discovery. As such, mishandling the initial collection or production of attachments can result in major increases in collection, processing, and review costs. Many of the issues confronted in these attachment cases could have been resolved via stipulation between the parties before the defective productions were made. Parties should intellectually negotiate production formats and preferred organizational methods. The amended FRCP provides default rules for productions that may not be ideal for either party. Outcomes may improve if the parties can articulate their needs early in the process. The alternative is a motion to compel, re-production and possible sanctions. Chain-oriented review Fios Prevail is a proven, award winning e-discovery review platform used by law firms and corporations. One unique characteristic in Fios Prevail is chainoriented review. The term chain refers to an with all associated s and attachments. Items in a chain are displayed to show parent-child relationships. Review time can be cut dramatically with Fios Prevail as reviewers can view items rapidly and bulk categorize items in a chain, duplicate items or both. Fios Prevail bulk categorization screen shot

8 Notes: 1. U & I Corp. v. Advanced Medical Design, Inc., 251 F.R.D. 667, 675 (M.D. Fla. 2008). 2. Id. at *6. 3. CP Solutions PTE, Ltd. v. General Elec. Co., 2006 WL at *4 (D. Conn. Feb. 6, 2006). 4. Id. 5. PSEG Power N.Y., Inc. v. Alberici Constructors, Inc., 2007 WL (N.D.N.Y. Sept. 7, 2007). 6. Id. at * Federal Rule of Civil Procedure 34(b)(2)(E)(i). 8. MGP Ingredients, Inc. v. Mars, Inc., 2007 WL , at *2 (D. Kan. Oct. 15, 2007). 9. Valeo Electrical Systems, Inc. v. Cleveland Die & Mfg. Co., 2009 WL at *1 (E.D. Mich. June 17, 2009). 10. Id. at * Fed. R. Civ. P. 34(b)(2)(E)(ii). 12. White v. Graceland College, Inc., 586 F. Supp. 2d 1250, at 1263 (D. Kan., 2008.), (Citing, Fed. R. Civ. P. 34(b) advisory committee's notes). 13. Id. at *11.