eDiscovery Case of the Week with Kelly Twigger

How Manner of Production Impacts Litigation Outcomes

• Kelly Twigger • Season 1 • Episode 162

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Ever wondered how the nuances of electronic discovery could make or break a legal case? Discover the pivotal role of document production and organization as host Kelly Twigger guides you through the intricacies of eDiscovery in this week's Case of the Week podcast. Gain insights from the Partners Insight LLC versus Gill case, emphasizing why clarity in document production requests is a must to avoid legal squabbles. Learn about the surprising breadth of eDiscovery case law, which transcends jurisdictional lines, and why district and state court decisions often hold more sway due to the scarcity of appellate rulings.

Unearth the ongoing debate over TIFF versus native formats and why preserving metadata can be the linchpin in your legal strategy. Unpack how differing interpretations of the Federal Rules of Civil Procedure can tip the scales and the importance of keeping ESI in its original context. Twigger explores effective strategies for managing discovery costs and highlights the importance of precisely negotiating your data formats at the outset. Delve into key cases like Teledyne Instruments and gain expert perspectives that could transform how you approach eDiscovery. Don’t miss this compelling discussion that promises to keep you ahead in the fast-evolving landscape of electronic discovery.

Partners Insight, LLC v. Gill
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Thank you for tuning in to Case of the Week with Kelly Twigger. If you found today’s discussion helpful, don’t forget to subscribe, rate, and leave a review wherever you get your podcasts. For more insights and resources on eDiscovery, visit eDiscovery Assistant and explore our practical tools, case law library, and on-demand education from the eDiscovery Academy. Join us next episode as we break down another important case shaping the future of eDiscovery.

Kelly Twigger:

Welcome to the Case of the Week podcast, where each week, we break down a recent decision in electronic discovery case law and talk about the practical impact for you and your clients and keep you up to date on your obligations with electronically stored information as evidence. If you're a litigator, legal professional or you love the power of ESI as much as I do, this is the place to be. I'm Kelly Twigger, the CEO and founder of eDiscovery Assistant and the principal at ESI Attorneys, with more than 25 years of experience navigating the evolving landscape of litigation and e-discovery. I'm a practicing attorney, author, speaker, entrepreneur and now podcaster who works as a discovery strategist and expert for clients at ESI Attorneys and to provide that knowledge to all legal professionals through our e-discovery assistant platform. In each episode, we'll tackle a new decision in eDiscovery case law and how it shapes both your litigation strategy and planning for risk mitigation. If you're ready for blunt, actionable insights that keep you ahead of the curve, and maybe a few laughs along the way, this is your go-to podcast. Subscribe or follow now to start embracing the power of ESI as evidence. Hi and welcome to this week's episode of the Case of the Week series brought to you by eDiscovery Assistant, your GPS for knowledge and education in eDiscovery. Thanks so much for joining me today. This week's decision touches on a topic in eDiscovery. Thanks so much for joining me today. 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, if you're still using encrypted hard drives and the organization of the documents that we receive via that format.

Kelly Twigger:

Last week I was in my former hometown of Milwaukee, wisconsin, speaking at the Law and Technology Conference there and 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 e-discovery case law is formed in the trial courts and it's very fact specific and 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 e-discovery case law, be sure to look outside the jurisdiction you're in for in order to be able to make analogous arguments. Many of the issues in e-discovery 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 e-discovery case law, which means that the cases that you're citing to a court are other district court decisions or other state court decisions or 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, so keep that in mind as we're moving forward.

Kelly Twigger:

All right, let's dive into this week's decision. This week's case comes to us from Partners Insight LLC versus Gill. This is a decision from October 28, 2024 from United States Magistrate Judge Kyle Dudek. 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 and manner of production and failure to produce. All right, what are the facts before us here Now? This is a really short decision It'll just take you a few minutes to read, but it's an important one.

Kelly Twigger:

With regard to subsection E of federal rules, civil procedure, rule 34 regarding form and manner of production, we're before the court here on a motion to compel that are 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. Stephen and Jennifer Gill were plaintiffs are former employees of the defendant. As part of their employment, they signed several agreements containing confidentiality and non-compete provisions. Maintaining 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. Now, according to the court, the defendants so again Stephen 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. So we're talking about form of production with regard to native and we're talking about manner of production.

Kelly Twigger:

In terms of the organization of the documents, the court found that the defendants had provided the documents in electronic form along with metadata. It did not address what format the defendants had provided the documents in electronic form 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. And 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 is reasonable, all right, because there was 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.

Kelly Twigger:

Now I refer to this as manner of production, and 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. It consists of one the way in which documents are transmitted to you. So that could be via a link. I could provide a link to some service that would allow you to download the production. Share file 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 shared file transfer protocol, typically things like ignite 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. Right, if I receive a share file 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. So when we talk about organization it's, are you just going to get one massive folder with all the information in it, and how will that information be organized? What metadata fields are going to be provided with it as part of that form discussion? So organization and how the information is actually provided to you are the two components of manner of production.

Kelly Twigger:

Plaintiffs here complained that the defendants dumped documents at their feet quote without any discernible organization or relevance to the specific request propounded and that the plaintiffs could not tell which discovery request the documents respond to. That the plaintiffs could not tell which discovery request the documents respond to. The defendants argued that they identified by bait stamp which files were responsive to the plaintiff's requests, but they did not do so with emails, as they were produced in the usual course of business. The court then looked at Rule 34B2E, titled Producing the Documents or Electronically Stored Information, for Guidance on this issue and that subsection of the rule has three additional subsections which apply to the production of ESI quote, unless otherwise stipulated or ordered by the court. And those three subsections are as follows One, 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.

Kelly Twigger:

Two, 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 three, 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 one 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. So that's manner of production in subsection one. Subsections two and three talk about form and, as I already mentioned, subsection two says if you don't specify a form for production, then a party can provide it to you in whatever is reasonable. Section three 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. And that's really what it appears like here.

Kelly Twigger:

In this particular situation, the defendants produced information to the plaintiffs in TIFF files, so tagged image file format files, where essentially they 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? Well, 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 TIF, 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 Now.

Kelly Twigger:

After looking at the section language of the rule, the court then went on to note that there's a 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 two, which again requires you to specify a form for producing ESI or getting whatever is reasonable, while subsection one applies solely to hard copy documents and again, subsection one 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 one would apply to hard copy documents and subsection two 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 one, which provides for the organization of documents or the manner in which they are provided, is completely left out when talking about ESI and 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 two and section three, 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 hard copy 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, one and two, meaning both form and manner of production.

Kelly Twigger:

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 to the analysis of that law, to the facts of this case, and found that it didn't actually have to decide the approach, 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 quote 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.

Kelly Twigger:

Now, looking at subsection two, 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, one and two. 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 quote the mode of production should preserve the functional utility of the electronic information produced. That requires two things One, preserving the format of the ESI and two, providing sufficient information about the context in which it is kept or used. Now, 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. Now, if that's the case, that would be native format. Defendants here produce TIFF files accompanied by load files which, according to the court quote, retain the relevant metadata and essential functionality of the native file format. Close quote. Those two statements are completely opposite.

Kelly Twigger:

Citing to the Teledyne Instruments case, here, the court then found that, quote 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. Close quote. 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. Now, 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. Judge Dudek then notes that quote courts have accepted TIF files like those here, citing cases from 2019 and 2013. In doing so, the plaintiff 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. Right, if you convert the file that's not native, that's not what should be provided In doing so by saying that the court or that the plaintiffs failed to show that they missed these things.

Kelly Twigger:

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 quote the date the email was transmitted, perhaps along with the parties to the email sender and recipients, and the subject line. Oh, 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, quote at bottom, plaintiffs have not shown that defendant's response is deficient under Rule 34, which allows the production of ESI as quote kept in the usual course of business, close quote. Production of ESI as quote kept in the usual course of business, close quote. Now 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?

Kelly Twigger:

Well, the court agreed that 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 34B2E1 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.

Kelly Twigger:

Now 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.

Kelly Twigger:

All right with this ruling that the court found. The court denied plaintiff's motion to compel and also denied the motion for defendant's cost recovery, finding that quote reasonable. People could differ on the merits of the motion and whether further organization was needed given the sheer volume of production. Now, 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. And when you multiply that times four, five, six, the ability to organize that information sufficiently becomes increasingly important from a cost perspective. So we 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. All right, what are our takeaways here? Well, we've talked a bit about how Rule 34 addresses both format and manner of production in subsection B2E, and we talked about that language already. Now 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.

Kelly Twigger:

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 requests off. Make sure that your discovery requests include both instructions or in 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 depending on the sources of ESI. We have different formats, different metadata fields in Slack, different metadata fields in Teams for WhatsApp or Signal 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 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.

Kelly Twigger:

Now this next takeaway may seem a little bit elementary for season discovery 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, that works. Now what's interesting to me in this decision is how 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 produce metadata with custodian and date ranges that would allow plaintiffs to do the same searches, it doesn't work like that.

Kelly Twigger:

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 Balling your Court blog about the value of native data versus TIFFs. There just isn't a comparison and we'll drop a link to Craig's post if that's okay with him. Both in our show notes and in the comments here as well, discovery has always been contemplated that both sides have equal access to responsive information, and in this case ESI.

Kelly Twigger:

And equal access means that both parties get the same data in the same format. Now take this back to manner of production. So 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.

Kelly Twigger:

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, and 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.

Kelly Twigger:

Now 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. Now 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.

Kelly Twigger:

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 discovery professional, all right, that's our case of the argument for you. Put in a declaration from an expert, from an e-discovery professional, all right, that's our case of the week for this week.

Kelly Twigger:

Be sure to tune in next week, whether you're watching us via our blog, youtube, or downloading it as a podcast on your favorite platform. Thanks so much for taking some time to tune in. Please do let me know if you have suggestions for topics, issues or specific cases to be covered on the case of the week and I look forward to hearing from you. Thanks, talk to you soon. Thanks for joining me on the case of the week podcast Tune in next episode as I discuss a new decision in e-discovery case law and identify the issues you need to be paying attention to and how they can help you do better discovery for your clients and leverage the power of ESI. Be sure to subscribe and leave a review to help others discover the show and be kept in the know on all things electronic discovery. I'm Kelly Twigger. See you next time.

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