#CaseoftheWeek Episode 29: Why Form of Production is Key and When to Ask For It

This week’s episode analyzes the importance of understanding the data types you have and how that information is stored. In Episode 29, we discuss whether and when a party can seek native production of documents after production has been made and the parties never formally agreed on a form of production. The case we analyze is Cody v. City of St. Louis, 2021 WL 2454215 (E.D. Mo 2021).

Good morning and welcome to our #CaseoftheWeek for June 22, 2021. My name is Kelly Twigger. I am the CEO and founder of eDiscovery Assistant and the principal at ESI Attorneys. As always, thanks for joining us this week. Through our partnership with ACEDS each week, we choose a different case from the eDiscovery Assistant case law database and talk about the practical implications of that case and what it means for you, your practice, and for your clients.

Regardless of which platform you’re watching us on, you’ll find a link in the comments to the public link for this case, today’s decision, which is Cody vs. City of St. Louis. You’ll also find a link to our blog post from last week on metadata that is part of our ESI protocols blog post series that will be relevant to our discussion today, as well as a link to the 2020 Annual Case Law Report that we did in conjunction with Doug Austin at eDiscovery Today.

We’ve also just launched our new website at eDiscoveryassistant.com. Please hop on over and take a look.

All right let’s get into our #CaseoftheWeek for this week. This week’s case, as I mentioned, is one of the decisions from Cody vs. City of St. Louis. This is a case in the Eastern District of Missouri from Judge Audrey Fleissig. This decision is from June 16, 2021. One of the reasons that I picked this case is because it really leads us right into the next issue for our ESI protocols discussion, which is a form of production.

Let’s kind of dive into the case. There are three motions before the court on this decision. There’s a motion to compel production of ESI in native format for information that has been previously produced in the case and for go forward. There’s also a motion to compel additional discovery responses and a motion for sanctions for spoliation. We’re going to cover the motion to compel production of ESI in native format, as well as a brief overview of the motion for sanctions today. But I want to focus directly on the form of production issues that we can highlight that one.

This case is an action under 42 USC § 1983, a civil rights action on behalf of the plaintiffs and others similarly situated against the City of St. Louis, alleging dangerous, unsanitary, and inhumane conditions in the City’s medium security institution. As always, we discuss the timeline of the case, and it becomes particularly important in the context of these motions. The complaint was filed on November 13, 2017. On February 20, 2018 (about three months later), the parties filed a joint scheduling plan that included the following language, “The parties have discussed the exchange of ESI and have agreed that the initial production of ESI can be accomplished with PDF files, paper photocopies, or screen prints. Should the need to produce other ESI arise, the parties will confer in an effort to facilitate production in a mutually agreeable format.” That’s on February 20, 2018.

Fast forward to September 2018, and the Court rules on one of many motions to compel a motion for sanctions brought by the plaintiff in this case. At that time, orders the parties to continue to work together to attempt to agree on an ESI protocol and explore technologies available to limit search results. That’s in September.

Fast forward to July 2020 and the Court ordered on another motion to compel that the City produce a certain missing documents within 45 days, including City of Department health inspection reports, additional inspection reports, maintenance records for the facility. For any documents that could not be produced, the City was to provide an affidavit or sworn declaration by a person with knowledge as to why they could not be produced, as well as if a document was created but subsequently destroyed, the date and reason for the destruction of the document, if the document was created but is now missing the efforts taken to locate the document, and if the document was never created or there’s another unidentified reason for being unable to produce the document, a description of that reason. Those are the specifications required by the Court for the declaration following the motion to compel in which the Court ordered the City to produce documents.

On August 7, 2020, within those 45 days, the City moves to stay the case based on a new ordinance passed that would close the facility, which increased the possibility of settlement. A couple of weeks after that—still, within the 45 days—the City filed a notice with the court that it had met the obligations required by the Court’s July 17th order, including those required declarations. The City filed three affidavits with the court in compliance with that July 17th order. The first one was from the City’s records custodian, which outlined the searches and the work done to identify and provide material for the case in a very detailed manner. It also set out when inspections were not done for various reasons, whether they were scheduling or other reasons. It noted that one of the flash drives on which inspection reports had been stored was defective, meaning that some of the inspection reports were lost. I’m giving you kind of a general overview of what was included in the affidavit, but there’s much more detailed description in the case itself. That declaration also noted that documents had been shredded on December 6, 2017, which, if you recall from the timeline, was two weeks after the complaint was filed. That was done in accordance with the City’s five-year retention schedule, and that might have included responsive materials, but the extent of which was not completely known. The declarant also testified that she was advised to halt shredding in January 2018, which was somewhere between a month to six weeks after the complaint was filed, and that once she was advised, nothing further was destroyed.

There was a second affidavit from the records custodian from the Department of Health, which stated that he produced all materials except for paper records that were over five years old and that those records had been destroyed as part of an existing retention schedule.

A third affidavit filed by the accounting coordinator for the City’s Division of Corrections stated that they had produced many responsive documents and had no reason to believe that any documents had been destroyed, but that there had been flooding at the facility in 2020 and that it was, “impossible for me or anyone to attest with certainty whether or not material sought by plaintiffs that have not been produced were ever created.”

After those filings, the court granted the City’s request for a stay to allow for settlement discussions to proceed. After that, there is a series of dates, and no settlement ultimately happens. The case goes back to the court to move forward in February of 2021. It’s not specifically noted in the case, but at some point, the plaintiff’s counsel changes over. We get new plaintiff’s counsel. Based on the arguments that we start to see in this case after this day, it looks to me like we got new counsel that was more knowledgeable with regard to issues in ESI, as well as what needed to happen in the case. In February 2021, when the case comes back to the court following the stay, the plaintiffs reviewed the City’s production and realized that the City had produced thousands of pages, “lacking adequate metadata” including the custodian, recipient, and dates of documents. Then the plaintiffs moved to compel that the City reproduce those documents in native format or with adequate metadata going forward. The City offered to produce adequate metadata or what was considered adequate metadata going forward but argued that it should not be required to reproduce documents that had been produced years ago.

What is the Court’s analysis on the motion to compel native format or additional documents with metadata? The plaintiffs argued that where no party agreement or court order exists, that ESI must be produced in a reasonably usable form and that metadata is required to make productions reasonably usable and is inherent in their quest for ESI. The City argued that the parties agreed to produce in PDF in the joint scheduling order back in 2018 and that they would be happy to confer with the plaintiff regarding other mutually agreeable formats and that it has produced some files in native formats that could not be converted to PDF.

Again, there’s more discussion of detail of the types of files. There are video files and audio files that are produced natively, but that most everything was converted by the City to PDF in accordance with that original agreement that the parties had.

The City also argues the plaintiffs did not ask for metadata in their request for production and that the City would have objected based on certain categories of documents because of the manner in which documents are stored and that forcing it to reproduce voluminous prior productions years later is unduly burdensome.

Now, there’s not a discussion in the case of the actual volume of data that we’re talking about. We don’t know whether we’re talking about thousands of documents or hundreds of thousands of documents. It seems from looking at the types of documents that it’s probably in the tens of thousands to 100,000 just judging from the time frame. The plaintiffs are really asking for a nine-year time frame for documents, which is extensive in these kinds of situations. But we’re also talking about the state of a facility and the conditions that inmates would have been subjected to. It’s possible that going back that far was not unduly burdensome.

What does the Court say in response? The Court looks to Federal Rules of Civil Procedure 26(f) and that the Court required the parties to confer regarding form of production and advised that that the failure of the parties to do so, “before requesting such production and that the failure to do so may result in the Court either denying or requiring cost sharing before ordering a second production of format of ESI in a different format.” The Court said, look, not only does Rule 26 require you to meet and confer, but we told you to do so on multiple occasions and you didn’t do it. The Court notes that the parties never agreed on the form of production outside of the joint agreement more than three years into the case, despite multiple warnings from the Court and that the plaintiffs never requested a format in any of their requests for production or in the numerous motion to compels that were made with the Court (motions to compel, not motion to compels).

The Court then looked at Rule 34 and specifically Rule 34(b), which permits the parties to specify the form or forms in which ESI is to be produced and provides that, “If a request does not specify a form for producing ESI, a party must produce it in a form or forms in which it is ordinarily maintained or in any reasonable, usable form or forms.” That language is really important that a party must produce it in a form or forms in which it is ordinarily maintained, which in most senses would be native format unless it’s converted to be stored or in a reasonably usable form. You’ve got two distinctions there. You’ve got the form in which it’s initially created or in a reasonably usable form. What is a reasonably usable form is an issue that really needs further clarification within the courts, and we’re going to talk about why.

The Court goes on to say that the rule further specifies, “that a party need not produce the same ESI in more than one form.” Court also notes that neither the rule nor the advisory committee notes specify whether metadata must be produced for ESI to be considered reasonably usable. However, absent a specific request to the contrary or special circumstances, courts regularly find that searchable PDF documents constitute a reasonably usable form.

That’s where I think that we get into trouble with the courts is understanding what is a reasonably usable form. That may differ from case to case, depending on the volume of documents and the type of documents that you have at issue, or where you have just a few handfuls of documents that are non-searchable PDF or a PDF that allows you to parse fields may be reasonably usable, but it is not the same format that the producing party has. You have an imbalance of the data that is provided to a receiving party. When a producing party has data that’s available in a native format and can use search tools to organize and store that information for litigation purposes, when the other side does not have the same value of that information in the native format or in what would be a reasonably usable format with metadata associated with it, there are disadvantages that the receiving party is getting. I think that’s a really important point of where we need to go with the court from an education perspective on form of protection.

Back to our case. The City produced in PDF format for years, according to the agreements, and the plaintiff also produced in PDF format. That’s an important point here from the Court’s perspective. It’s an important point, right? You can’t ask for PDF format and provide PDF format and then ask for something different. The plaintiffs failure to discuss it with the City included in their request for production or to raise it with the Court were all bases on which the court looked to deny its motion. However, the Court did allow plaintiff to provide the City with a list of key documents for which they were unable to identify the author, date, or recipients and then ordered the parties to meet and confer about the potential production of native format for those documents, as well as any documents going forward and left it open to the parties to bring a further motion for the Court if they were unable to agree following that meet and confer.

Following up on the form of production, again, Court said, look, we gave you multiple opportunities to agree to this. Rule 34 says provided in a reasonably usable form. You agreed to PDFs. We think PDFs so reasonably usable and there’s case law to support that. Now that case law is older, but it’s not that old. It’s from 2008 – 2009. That’s something we need to address.

Turning to the motion for sanctions, in looking at the affidavits that the City provided in response to the July 17th order from the Court, the plaintiffs asserted three different allegations of spoliation—that the shredding of the 2012 documents in December 27th, the loss of the flash drive, and the destroying of health records pursuant to the five-year retention policy—were all bases for sanctions. They also allege that the City violated its discovery obligations by failing to perform a reasonable inquiry for responsive information and for relying on non-lawyer custodians to self-collect and produce documents without adequate supervision.

The plaintiff asked for sanctions in that the City be precluded from introducing any evidence of what is discussed as missing records, as well as requesting an adverse inference and costs and fees on the motion. In response, the City says that there’s no bad faith or prejudice to warrant sanctions here under Rule 37(e), that the lost records (the ones that were deleted or destroyed pursuant to the retention schedule in December of 2018) are three weeks out of a nine-year time frame that is requested by the plaintiffs and largely irrelevant, and of all the other records, they were either likely produced or were available from other sources. The Court’s view of the motion for sanctions here is probably colored by the fact that this is the third or fourth motion for sanctions that the plaintiffs have brought in this case. Nevertheless, it undertakes the same analysis under Rule 37(e) that we’ve seen.

Remember that Rule 37(e) is the section under Rule 37 on failure to preserve. Under that particular subsection of Rule 37, the plaintiffs are required to show either prejudice or bad faith in order to be able to get sanctions under that section. The Court looks at the information that’s available and says we don’t see any evidence of bad faith, which is pretty clear from the declarations that the City files, and there’s nothing that the plaintiffs have shown that rises to any level of prejudice. For those reasons, sanctions were not available under Rule 37(e), and they denied the motion for sanctions.

The Court also denied the plaintiffs’ claims that the City had violated Rule 26. These are again the Rule 26(g) requirements that they provide to incorrect responses to requests for production based on the identification and collection efforts that were documented by the City in those affidavits.

Both motions denied here and good analysis from the Court, but some real issues with regard to form of production.

What are our takeaways? Pretty consistent with what we talk about all the time on our #CaseoftheWeek.

First you need an agreement at the outset of discussing ESI issues on form of production at any point prior to productions being made. What are your options for when you can engage on a form of production? You can come up with an ESI protocol, which we’ve talked about. You can include instructions in your request for production. You can get another formal agreement signed off on the Court. You definitely want to get a formal agreement on form of production signed off by the Court. Otherwise, you will not be able to allege any basis under Rule 37 for violation of a court order here. The plaintiffs were limited to Rule 37(e) as a basis for sanctions because there was no order that was violated, and they could not show prejudice or bad faith, so their motion failed.

Second takeaway—document, document, document! The City did a great job here with its affidavits of showing the efforts that were undertaken in detail with retention policy cited and dates to show a pattern of identifying data for the case. It really laid out nicely that there was clearly no bad faith on the part of the City. It laid out exactly when they were instructed to halt destruction of information and what those retention policies were, and it included specific dates. It really put the onus back on the plaintiffs to be able to show the prejudice that they believe incurred as a result of the alleged spoliation. The plaintiffs were not able to do that.

Third, take away. Review your productions when you get them. Don’t sit on them. Don’t wait. Here, it looks like the plaintiff’s counsel changed, and maybe the second set of lawyers, again, as I mentioned, were more savvy on the ESI related issues. But the court specifically notes that all the lawyers that represented plaintiffs were seasoned litigators who had the same requirements to have knowledge about ESI related issues. In this particular instance, the plaintiffs waited years after the data was produced to be able to move for native format, and that was absolutely a condition that the court looked at.

The next takeaway — Rule 34 under the Federal Rules Civil Procedure, many of which states follow. You need to understand what your state jurisdiction looks at as far as form of production goes. Rule 34 is clear that reasonably usable is the standard for form of production. There’re two elements, right? You get reasonably usable and then you also get that a party is only required to produce documents in one form. If that form is reasonably usable, and you didn’t ask for another form prior to receiving the documents, you’re going to be out of luck as far as going back and trying to get better information. This is consistent across the case law.

The issue that I see here in this Cody case is that the Court is really not understanding the advantages of metadata and native format and how one party is disadvantaged to have less than the producing party has. It’s really up to you as the lawyers to negotiate true form of production and not let it go until you get the information that’s going to be needed for your case or an order from the Court saying that you can’t have it.

When you make a motion on form of production, you want to be very specific as to why you are asking for specific information. In this case, it sounds like the City was willing to negotiate or would have been willing to negotiate on form of production for specific types of documents. Again, no matter what you ask for, you’re always going to be limited by that information as it exists for the producing party. For example, if the City health inspection records only existed as scanned PDFs, then that’s the only information that would be available unless the City had undertaken some efforts to create metadata fields prior to the litigation. There’s nothing in Rule 34 that requires a producing party to code fields or provide additional information absent any agreement between the parties.

Know your data. Know the data types. Negotiate the form of production based on the data types that you have and how that information is stored. That goes both ways. Here, the City would have needed to negotiate specific forms of production based on the types of data that were being produced, and the plaintiffs needed to ask for it. They just didn’t.

Those of us who are technologists and work with the data every day, we understand the real differences between having non-searchable PDFs and having metadata and the ability to get through information quickly to sort those inspection reports and understand what you have and what kind of gaps would exist is just one way in which we would use metadata. We discuss a number of those ways in which to use metadata and why it’s important in the blog post that’s attached to the comments in your platform today. That’s again, the part about metadata that is included in our ESI Protocol series.

Our next blog post will talk about a form of production, what you want to request and some of the issues that were raised today by this Cody decision.

That is our #CaseoftheWeek for this week. Thanks so much for joining me. I’ll be back next week with another edition of our #CaseoftheWeek from our eDiscovery Assistant database.

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Have a great week. Stay safe and healthy and I’ll see you next week. Thank you.

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