In Episode 162, Kelly Twigger discusses the scope of manner of production under Rule 34 and a party’s obligation to organize documents prior to production in Partners Insight, LLC v. Gill.
Introduction
Welcome to this week’s episode of the Case of the Week series, brought to you by eDiscovery Assistant in partnership with ACEDS. My name is Kelly Twigger. I am the CEO and founder at eDiscovery Assistant, your GPS for ediscovery knowledge and education, and the Principal at ESI Attorneys. Thanks so much for joining me today.
A couple of announcements before we get into our Case of the Week.
December 5th is E-Discovery Day this year, and I’ll be joining an incredibly fun panel to talk about our favorite topic this year — hyperlinked files. I’ll join Doug Austin of eDiscovery today, Brett Burney from Nextpoint, and Tom O’Connor from the Gulf Coast Legal Technology Center to discuss the latest technology, leveraging hyperlinks, and what we can do to be able to collect from those technologies, as well as how contemporaneous versions are currently being handled. The link to register is here.
Please mark your calendars for the University of Florida eDiscovery Conference, to be held virtually and in person on February 12-13, 2025. That conference represents 12+ hours of CLE for lawyers, and it’s practical education, really from the best in the business, and it’s free to attend virtually.
On with the show.
This week’s decision touches on a topic in ediscovery that is rarely discussed, but affects every production that we make and how we make them. It’s called manner of production, and it’s both how we receive the documents — think via link or secure file transfer protocol, or if you’re still using encrypted hard drives — and the organization of the documents that we receive via that format.
Last week, I was in my former hometown of Milwaukee, Wisconsin, speaking at the Law & Technology Conference there. One of the things that I raised to the group there is an important point that I want to make for our audience here. And that is that the case law that we see in ediscovery, it is not necessarily jurisdiction-specific the way that other case law is in other substantive areas of the law. Most often, those case updates are jurisdiction-specific, and it would have been last week when I’m speaking to folks in Wisconsin, whether it was Wisconsin state law or law from the Seventh Circuit.
But ediscovery case law is formed in the trial courts, and it’s very fact-specific. We don’t have one jurisdiction across the country that has addressed every single issue in electronic discovery. And so courts from across the country, in ruling on decisions, typically cite to cases from other districts, or even state courts or appellate courts from across the country. So when you’re conducting your research on ediscovery case law, be sure to look outside the jurisdiction you’re in in order to be able to make analogous arguments. Many of the issues in ediscovery have been addressed by courts. They just maybe are not the court that you’re sitting in. We also don’t necessarily have that many appellate rulings in ediscovery case law, which means that the cases that you’re citing to a court are other district court decisions or other state court decisions, federal decisions in state court, whatever the case may be. Look for the case law that has addressed the issue in electronic discovery that you are trying to impart to the court. Focusing purely on discovery decisions in your jurisdiction will limit you unnecessarily. Keep that in mind as we’re moving forward.
Let’s dive into this week’s decision.
This week’s case comes to us from Partners Insight, LLC v. Gill. This is a decision from October 28, 2024, from United States Magistrate Judge Kyle Dudek. Magistrate Judge Dudek has 69 decisions in our eDiscovery Assistant database. He is a Magistrate Judge in the Middle District of Florida. As always, we add the issue tags to each of our decisions in eDiscovery Assistant, and this week’s issues include native format, metadata, cost recovery, manner of production and failure to produce.
Facts
What are the facts before us here?
This is a really short decision. It’ll just take you a few minutes to read, but it’s an important one with regard to subsection (e) of Federal Rule of Civil Procedure 34, regarding form and manner of production. We’re before the Court here on a motion to compel that is brought by the plaintiffs, who are seeking to compel the production of documents that have already been produced in a different format with different organization. Steven and Jennifer Gill, the defendants, are former employees of the plaintiff. As part of their employment, they signed several agreements containing confidentiality and non-compete provisions. The plaintiffs alleged that the Gills violated those agreements by stealing trade secrets and forming competing businesses to compete against the plaintiff.
The plaintiffs served defendants with requests for production shortly after the case was filed. According to the Court, the defendants, so again, Steven and Jennifer Gill, resisted producing any responsive documents for more than 18 months, and then finally produced a link to more than 180,000 documents of emails and other documents in electronic format with metadata.
The plaintiffs here sought to compel the defendants to produce all responsive non-privileged documents in native format with metadata and with sufficient specification and identification of the documents produced. We’re talking about form of production with regard to native, and we’re talking about manner of production in terms of the organization of the documents. The Court found that the defendants had provided the documents in electronic format along with metadata. It did not address what format the defendants provided information in or whether plaintiffs requested native format in either their instructions to the RFPs or in an agreed upon ESI protocol or some other way to address form of production. Without those specifics, it’s difficult to know whether the defendants produced documents really in violation of what the plaintiffs asked for initially. You’ll recall from Rule 34 that if a party does not request documents in a certain form, then the producing party can provide them in whatever form is reasonable.
Because there were not any specifics about form of production and the Court essentially decided that having produced TIFF images with metadata was sufficient, the Court then turned to the organization of the documents provided. Now, I refer to this as manner of production. If you have downloaded or read our eBook on ESI protocols, something that we’re actually updating for redistribution here in a couple of weeks, you’ll see a whole section on manner of production, and manner of production consists of two things.
One is the way in which documents are transmitted to you. That could be via a link. I could provide a link to some service that would allow you to download the production. Sharefile is a common one. Other parties use box or Dropbox. You can provide links to a lot of different services. Another solution is to send via a shared file transfer protocol. Typically, things like Egnyte, Media Shuttle, many services provide SFTP protocols that allow you to share information, large quantities of information, quickly. So, however it is that you decide you want to get that information, it does impact the timing with which you receive it. If I receive a Sharefile link, it’s going to take me hours to download a production that comes with many, many gigabytes. And so how you negotiate that manner of production determines how quickly you’re going to get that information.
Why does that matter? Well, if you get the information on a Monday and you have a motion that you have to file on a Friday, you don’t want to waste eight hours having to download information from that link. So think about that when you’re negotiating how you’re going to receive the information.
The other issue is the organization of the data. When we talk about organization, it’s are you just going to get one massive folder with all the information in it? How will that information be organized? What metadata fields are going to be provided with it as part of that form discussion? The organization and how the information is actually provided to you are the two components of manner of production.
Analysis
Plaintiffs here complained that the defendants dumped documents at their feet, “without any discernible organization or relevance to [the] specific requests propounded”, and that the plaintiffs could not tell which discovery request the documents respond to. The defendants argued that they identified by bates stamp which files were responsive to the plaintiff’s request, but they did not do so with emails, as they were produced in the usual course of business.
The Court looked first at Rule 34(b)(2)(e), titled Producing the Documents or Electronically Stored Information for guidance on this issue. That subsection of the rule has three additional subsections which apply to the production of ESI, “Unless otherwise stipulated or ordered by the court.” Those three subsections are as follows:
(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;
(ii) 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; and
(iii) A party need not produce the same electronically stored information in more than one form.
So we’ve got two actual different concepts here within these three subsections. One, with regard to manner of production it talks about the organization in subsection (i), and it notes that you can produce documents as they are kept in the usual course of business or organize and label them to correspond to a request. That’s manner of production in subsection (i).
Subsections (ii) and (iii) talk about form. And as I already mentioned, subsection (ii) says if you don’t specify a form for production, then a party can provide it to you in whatever is reasonable. Section (iii) goes a step further and says a party does not have to produce it to you in more than one form. So, if you don’t ask for it out of the gate and you wait for a party to give you something, as long as that format is reasonable — and courts vary as to whether non-searchable PDFs, TIFF images, all these different kinds of productions are reasonable — then you will not be entitled to ask for it in a second form.
That’s really what it appears like here. In this particular situation, the defendants produced information to the plaintiffs in TIFF files, so Tag Image Format Files, where essentially it took the native document, broke it up into two pieces. One is the actual text from the document itself, and two is an image of the document. So that when you load those files, you can see both the document as it originally appeared as an image, but also with a text that can be loaded. So you can review and search on the text as well.
Is that better or worse than native? We can absolutely talk about that. Today, you can render TIFFs on the fly, meaning that if I load a whole bunch of native documents into a review platform, I can decide just to make a TIFF image of that document right then and there if I want to. So there’s a lot of debate about whether or not native production is better than TIFF, and that’s not where we’re going to go today, but I will point out some resources there for you to take a look at on that issue.
After looking at the section language of the Rule, the Court then went on to note that there’s split among courts as to which of those subsections apply to ESI, finding that some courts have held that ESI productions are governed exclusively by subsection (ii), which again requires you to specify a form for producing ESI or getting whatever is reasonable, while subsection (i) applies solely to hardcopy documents. And again, subsection (i) is that a party must produce documents as they are kept in the ordinary course of business or organize and label them according to request.
That line of reasoning from the Court, that subsection (i) would apply to hardcopy documents and subsection (ii) would apply to ESI, does not make any sense to me, and it’s not consistent, I don’t think, with the reading of the Advisory Committee Notes for that Rule. Under that logic, as the Court applies it here, subsection (i), which provides for the organization of documents or the manner in which they are provided, is completely left out when talking about ESI. That’s a terrible approach, as the volume of ESI requires more organization, not less. That approach focuses entirely on form of production as covered in section (ii) and section (iii), meaning that if a party produces TIFF files to you or TIFFs to you with metadata, that you then have that information and can be able to filter and store it in a way that you would not otherwise be able to do with hardcopy information. I don’t believe those sections were meant to be read exclusive of one another. The Court notes that the vast majority of courts have found that the production of ESI must comply with both sections (i) and (ii), meaning both form and manner of production.
So, having said “okay, we’re not going to follow that one approach”, the vast majority of courts follow the second approach, then what does the Court do? The Court then turned the analysis of that law to the facts of this case, and found that it didn’t actually have to decide which approach was correct, because it felt that defendants satisfied both sections with the production they had already made to plaintiffs. The Court noted that the defendants produced responsive emails as TIFF images with load files which retained the relevant metadata and “essential functionality of the native file format.” According to the Court, that is sufficient. Again, what the Court does not say here is what format plaintiffs requested the data in, just that the defendant’s production is reasonable.
Now, looking at subsection (ii) — the organization or manner in which the documents are provided — the Court found that the defendants were entitled to produce documents as they are maintained in the usual course of business. So, technically, although the Court said they don’t need to decide which approach they’re taking, they actually did the analysis under both sections (i) and (ii). So really, they adopted the approach that the vast majority of courts do.
According to the Court, when a party chooses to produce documents as they are kept in the usual course of business, “the mode of production should preserve the functional utility of the electronic information produced.” That requires two things: (1) preserving the format of the ESI, and (2) providing sufficient information about the context in which it is kept or used. To meet that first requirement — preserving the format of the ESI — the producing party must generally produce ESI in the format in which they are kept on the user’s hard drive or other storage device. If that’s the case, that would be native format. Defendants here produced TIFF files accompanied by load files which, according to the Court, “retain[] the relevant metadata and essential functionality of the native file format.” Those two statements are completely opposite. Citing to Teledyne Instruments, Inc. v. Cairns, the Court then found that, “Generally, ‘[a] file that is converted to another format solely for production, or for which the application metadata has been scrubbed or altered, is not produced as kept in the ordinary course of business.” So, that’s two parts. A file that has been converted to another format solely for production or for which the metadata has been altered or scrubbed.
According to Teledyne, cited again by the Court here, files that are maintained in native format should be produced in native format, including the metadata. But ostensibly completely disregarding that holding, Magistrate Judge Dudek then notes that “courts have accepted TIFF files like those here”, citing cases from 2019 and 2013. In doing so, the Court here states that plaintiffs have not claimed, let alone shown, that the emails are unsearchable, which was not a requirement at all of Teledyne or of the Federal Rule that we’re referencing here, or that metadata was missing. Also a secondary portion of that Teledyne holding — because there were two separate pieces — if you convert the file, that’s not native. That’s not what you should be provided.
In doing so, by saying that the plaintiffs failed to show that they missed these things, the first requirement was satisfied, according to the Court. The Court then turned to the second requirement, and again citing to Teledyne, found that a producing party provides enough information about the context in which the emails are kept and used if it provides “the date the email was transmitted, perhaps along with the parties to the email (sender and recipients), and the subject line.” If you can’t see me, it’s because I’m gritting my teeth massively.
Applying that analysis here, the Court found that plaintiffs had not provided any evidence that the information was not included in the production, and that “At bottom, Plaintiffs have not shown that defendants’ response is deficient under Rule 34, which allows the production of ESI as ‘kept in the usual course of business.’”
The plaintiffs argued that a party may only produce documents as they are usually kept when their natural organization makes finding critical documents reasonably possible. It’s a good argument, but it’s not supported by the language of the Rule. So how did the Court address that? Well, the Court agreed that it may direct a party to organize or label documents if it’s impossible to find critical documents, but that it was unable to do that on the record before it. It noted that the plaintiffs did not argue that the emails were unsearchable or that they cannot be organized by date or sender, which those are really two different things. It kind of demonstrates here that I’m not sure the Court had the level of sophistication and knowledge of the information before it or the technology that can be used here, because when the plaintiffs argued that they can’t find critical documents, the Court is essentially saying, why? I don’t have enough information before me to be able to determine why you can’t do that. So the plaintiffs needed to make a better case for themselves here.
The Court also noted that the obligations of Rule 34(b)(2)(e)(1) are disjunctive. There’s no obligation under Rule 34 that a party who elects to produce documents as they are ordinarily kept in the course of business to also organize them. That’s a key piece right here, I think, for the production of ESI, because what does ordinary course of business mean? When we dealt with paper copies, it meant that each custodian had a file in their file drawer, had some form of organization of information. If we’re not providing that in that way now by custodian or by some other organization, we’re not really providing data as it’s kept in the ordinary course of business. Email in an organization generally is all kept in one place. It’s on the cloud or the server, whatever that email service is that manages that organization’s email infrastructure. And so that’s all in one place.
If you’re pulling down records for multiple custodians regarding multiple topics, some of which may not be specifically custodian-based, then how do you organize all of that information? You need to start thinking about that when you’re dealing with productions now that we’re dealing with collaboration tools, text messages. How do you want that information organized? How do you want that collection to be presented to you? If you know that the text messages are likely to be the most important part of the data source that you get in responses to requests for production, have those text messages organized separately. Negotiate what you can do.
With this ruling, the Court denied plaintiff’s motion to compel and also denied the motion for defendant’s cost recovery, finding that “[r]easonable people could differ on the merits of Plaintiffs’ motion and whether further organization of the discovery responses is needed given the sheer volume of production.” Here, we were talking about a little bit more than 180,000 documents. That’s a lot of documents, no question. But it’s a drop in the bucket compared to what we see in general civil litigation these days. When you multiply that times 4, 5, 6, the ability to organize that information sufficiently becomes increasingly important from a cost perspective. We’ve got to keep an eye on this issue. I still feel like there needs to be some kind of amendment to Rule 34 to better provide for how ESI could be provided on production.
Takeaways
What are our takeaways here?
Well, we’ve talked a bit about how Rule 34 addresses both format and manner of production in subsection (b)(2)(e), and we talked about that language already. I find that counsel regularly gloss over manner of production, and that’s a mistake, in my opinion. How documents are organized and how you receive them can dramatically impact how long it takes you to find something in that production. Think carefully about what you’re asking for and what you need to be able to find, and ask for documents that way. Negotiate it at the outset. Don’t just send your discovery request off. Make sure that your discovery request includes both instructions on format, and that format is going to need to address different metadata fields depending on the sources of ESI. We have different formats, different metadata fields in Slack, different metadata fields in Teams, for WhatsApp or Signal or for text messages. They all have different metadata fields and you want to know what those are.
A key to format for text messages is making sure that when text messages are exported, that the contact names for each of the phone numbers are in the phone that the text messages are collected from. Otherwise, you get text messages from a phone number and you have to match all of those messages up to a specific phone number to a specific custodian. It makes reviewing information a lot more difficult. So, think carefully about your form and manner of production for each source of ESI that you have in a case and how quickly you’re going to need to be able to access them. If you’re not going to get your responses for information until the week that you’re trying to take a deposition, you’re going to have a really hard time getting through that collection and making sure you have all the necessary documents to be able to properly take that deposition, or defend it, as the case may be.
This next takeaway may seem a little bit elementary for seasoned ediscovery professionals, but if you want a specific form of production, you have to ask for it. Here, the plaintiff sought native format for the files, but there’s nothing in the decision from the Court as to whether they asked for it in either their request for production or in another way, like in an ESI protocol.
If you don’t ask for it, Rule 34 says the producing party can provide it in any reasonable format. Here defendants did what is standard. They provided TIFFs with metadata, and the Court said that works. What’s interesting to me in this decision is how Magistrate Judge Dudek cites the Teledyne decision that says native documents should be produced natively, and that converting native format to TIFFs is not native production. But he then ignores it, essentially by finding that because defendants produced metadata with custodian and date ranges, that would allow plaintiffs to do the same searches. It doesn’t work like that. Native data is always going to be superior, and the days of not being able to ensure that the other side can’t alter them are really over. We argued about that for a full decade, and it just isn’t how the data is structured. Craig Ball wrote an excellent piece years ago on his Ball in your Court blog about the value of native data versus TIFFs.
Discovery has always been contemplated that both sides have equal access to responsive information, and in this case, ESI. Equal access means that both parties get the same data in the same format.
Now, take this back to manner of production. We talked about format. When you’re talking about manner of production, it’s critical that you consider this when you’re requesting documents or negotiating an ESI protocol. The sheer volume of data that we have now with ESI means that the cost of handling that data ratchets up as the volume and complexity of that data goes up. They really just go on a graph right together. Controlling costs for discovery has to begin at the outset of the matter by negotiating both the format and the organization of the data. Are you entitled to it? Not really under the rules. But if you can make a good case for why you should get it a certain way, do it. You have to ask before the production is made. No court will require a party to reproduce information, except in very limited situations. If it’s a dire circumstance for your client in terms of getting a specific organization for the court, and you can make a good factual basis for it, you can go to the court in advance of receiving the documents to have the court order production in a certain way.
Hear from the other side about what the additional burden is to provide production in that way, and then come to a compromise or go to the court and have them order it. But you’re going to have to provide that factual basis to be able to explain why the court should provide that. The plaintiffs weren’t able to do that here, and that’s why they ultimately lost.
One thing to be aware of. California passed a statute a couple of years ago that now requires all productions to be organized by request. That’s an additional burden, and because multiple documents can be responsive to multiple requests, overlapping requests generally, it’s not an easy thing to do, and it takes more time. In huge productions, it can add hundreds of hours and therefore cost. So be aware of that. Negotiate with the other side, but you’ll have to meet that obligation.
There’s no inkling that the Federal Rules of Civil Procedure are moving in that direction. But if the plaintiffs here had made a factual basis for why they needed what they asked for, the Court really did seem primed to entertain it. It just did not have enough of a record to do so. So make that factual basis. Make the factual basis for what it is that you’re asking the court to do. It’s one of our themes here on Case of the Week, and it’s a really important one. Discovery motions are won and lost based on the facts and the record before the court. It’s the latter, the loss, the lack of facts presented by a party, that usually trips up one party and causes them to lose. Provide the appropriate detailed factual analysis. Don’t just argue the rules. If you need help, find someone who can sufficiently make the argument for you. Put in a declaration from an expert, from any ediscovery professional.
Conclusion
That’s our Case of the Week for this week. We are going to be off next week for the Thanksgiving break. I hope that each of you have a wonderful holiday, that you get to celebrate it with the people you love, whether that’s friends, family, or your community. Please surround yourself with the people that you are grateful for and thankful for. I’m thankful for each of you! Thanks so much for taking some time to tune in.
Be sure to tune in in two weeks, whether you’re watching us via our blog, YouTube, or downloading it as a podcast on your favorite podcast platform. Have a great week!
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