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RECMGMT-L  March 2009, Week 4

RECMGMT-L March 2009, Week 4

Subject:

Getting TIFFed Off: The Dangers of Not Going Native with ESI . . . Or, The ...

From:

pakurilecz <[log in to unmask]>

Reply-To:

Records Management Program <[log in to unmask]>

Date:

Wed, 25 Mar 2009 00:40:12 +0000

Content-Type:

text/plain

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text/plain (1 lines)

Use this link for the full blog

http://shrinkster.com/15jt

Sent to you by pakurilecz via Google Reader: Getting TIFFed Off: The
Dangers of Not Going Native with ESI . . . Or, The Perils of Killing
the Bunny via E-Discovery Bytes by [log in to unmask] (Wendy Akbar) on
3/16/09
For a full understanding of the Great TIFF v. Native Debate and the
dangers of choosing the wrong side, try this. Picture a bunny.

Why not? Spring is near, and Easter is only a month away. So, picture a
bunny. You can cuddle it, watch its little nose twitch, listen to its
heartbeat, even observe its behavior and follow it home. If you are one
of those lucky creatures who speak bunny -- like computer programmers
speak source code -- you can politely inquire where it's been, what
it's seen and who it has spoken with.

Electronically-stored information (ESI) such as e-mails and
spreadsheets, is like that living bunny. It exists in pure native form,
possessing an exotic birthday suit from which can be gathered the
hidden details known as metadata -- who authored the data, who sent and
received it, the underlying formulas behind the numbers in an Excel
spreadsheet, where files or e-mails were stored, who read or possessed
them, when they were created, accessed, modified and saved. Such ESI
produced by a party is fully searchable. Like the bunny, it can talk to
your opponent, and tell them things.

But herein lies the nasty little secret: attorneys and their clients do
not want the bunny to talk to their opponents. In fact, they would love
to produce ESI in such a way that their opponents cannot communicate
with the bunny. But in most cases, their opponents' requests for
production specifically ask them to turn over the bunny. So what can
they do?

Picture that bunny, dead. Whacked. A poor dead bunny, handed over to
the other side. No pulse. No heartbeat. You can't follow a dead bunny
home. You can't talk to it, and it certainly can't talk back. That dead
bunny is a TIFF, or "Tagged Image File Format," like a PDF. When the
bunny is snuffed and the electronic data "TIFFed" -- i.e., printed out
in hard copy and then re-scanned -- it becomes dead and frozen, rather
than dynamic and searchable. What you see is what you get. The hidden
information, the ability to search millions of pages of text for
smoking gun language, and to peek at its living history, is lost. And
your opponent has no way to recreate it. There is no way for him to
resuscitate that bunny. Sure, he can take a DNA test of the dead bunny:
convert the tiny elements of TIFF images -- the individual letters,
like the Ts, As, Gs and Cs of a double helix -- into searchable text
format through optical character recognition ("OCR"). But OCR does not
solve the main problem: identification of the lifeblood, the living
metadata of the bunny's life history (the who, what, where, when and
why) that does not appear in the TIFFs.

Still, what's wrong with this? Why not always produce ESI in TIFF
rather than native metadata form? Why not always produce a dead bunny?
Isn't this a perfect solution? Unfortunately, no -- as one law firm,
two lawyers, and their very unhappy client just learned in Bray &
Gillespie Mgmt. LLC v. Lexington Ins. Co., No. 6:07-cv-222-Orl-35 KRS
(M.D. Fla. Mar. 4, 2009). In short, Lexington wanted a live bunny and
requested all ESI in native format without any alteration or deletion
of metadata. Its opponent Bray & Gillespie (B&G) produced a very dead
bunny, and was called out by the court for doing so. And that was
before B&G's counsel began lying about who killed the bunny and when.



At issue were material misrepresentations made by two individual
partners at B&G's counsel, Reed Smith: Berringer (who was involved in
discovery) and Ellison (who was not). Berringer told the court that its
client B&G killed the bunny by printing its ESI in hard copy and
sending it to its former counsel Anderson Kill, who then scanned the
documents to create the TIFFs that Reed Smith later produced when they
took over the case. But Berringer's information was third-hand, and
wrong. He could have contacted Anderson Kill, reviewed the original
database, or talked to his client to determine the truth. He did
nothing. Even an early draft of a declaration from B&G's vice president
stated "electronic documents were extracted directly from individual
computers" and given to Anderson Kill. These paragraphs were
mysteriously omitted from the final version of the declaration.

The court found that B&G and its counsel had deliberately ignored
evidence that in fact, the ESI had been obtained from the client in
native and fully-searchable electronic form with metadata, in an
Introspect database. In other words, Anderson Kill obtained a live
bunny from the client. The bunny was then killed -- converted to
TIFFs "using a program that was set to selectively exclude certain
types of metadata" before production, which "removed or significantly
degraded Lexington's ability to search the ESI and, accordingly, that
it was not in a reasonably usable form as required" by Rule 34 of the
Federal Rules of Civil Procedure.

Berringer waited until near the end of a hearing before the court to
admit that the bunny had been obtained alive. Even then, he did not
disclose what metadata was in the Introspect database or how the ESI
was transferred to the database; did not disclose the existence of the
Target Hard Drive with the original production or that Reed Smith had a
copy of it. Instead, Berringer and Ellison made material
misrepresentations as to why they did not produce this live bunny: they
blamed Anderson Kill's refusal to allow them access to the database,
which was not true. The court found that B&G “directly or through their
agents deliberately manipulated the electronically stored information
in such a way as to withhold from the defendants the information that
had been requested, specifically metadata,” and ordered production of
the live bunny.

The end? Not even close. B&G produced the bunny -- alive, but with an
impaired memory, or limited metadata. In short, they gave up a
lobotomized bunny. The court responded by requesting a supplemental
response addressing why sanctions should not be imposed upon B&G and
its counsel. After a second hearing, the court found that Lexington was
severely prejudiced, and ordered production of the entire Introspect
database in whatever form Lexington wanted, with all costs borne by
B&G, and 60 days of extra discovery for Lexington to conduct any
follow-up. The court then turned to the issue of Rule 37 sanctions for
killing the bunny, lying about it, and then following up with a
brain-damaged bunny:

• Anderson Kill, the original law firm that gathered the data: NO
SANCTIONS. The firm, Anderson Kill, was off the case by the time
production occurred and gave Reed Smith full access to all data. While
responsible for putting together the TIFF disks, it was open with Reed
Smith about the fact that had been transferred from native electronic
format with metadata, to TIFF format. And it did not produce the TIFFs.

• A new attorney on the case who joined after the discovery misconduct:
NO SANCTIONS. But the court warned him against "blindly relying on
outside counsel falls short of the duty he has as an officer of the
court, as counsel of record, and as an advocate for his client."

• Ellison, counsel of record that was not responsible for the discovery
misconduct: SANCTIONS. The discovery misconduct was done under his
supervision, making him “an attorney advising” the defendant on the
discovery misconduct, and thus personally liable for Rule 37 sanctions.

• Berringer, counsel of record responsible for the discovery
misconduct: SANCTIONS, pending a hearing. The court issued an order to
show cause as to why Berringer should not be personally sanctioned for
his misconduct.

• Reed Smith, the law firm of both counsel of record: SANCTIONS. Law
firms that employ attorneys who "have engaged in a pattern of
withholding and concealing information concerning discoverable material
and misrepresenting to the court and opposing counsel material facts
about numerous failures to comply with discovery requests and Court
orders -- including falsely blaming a lack of third-party cooperation
and fabricating a false story about the form in which ESI was gathered
and stored" are subject to "significant sanctions." The Firm and its
counsel were jointly and severally liable for Lexington's fees and
costs.

The court rejected all of B&G counsel's excuses for killing the bunny,
including that: (1) Lexington did not provide adequate notice of its
requests for metadata because they was buried in "five pages of
boilerplate definitions and instructions"; (2) re-production would be
too burdensome as it would require a new privilege review -- which was
not true, because the documents in the Introspect database had already
been reviewed for privilege; and (3) B & G was entitled to produce ESI
as maintained in the usual course of business and in a reasonably
usable form -- an odd argument, since maintenance of ESI in the "usual
course of business" was in native metadata form anyway.

The lessons here are many, and clear. Counsel at Reed Smith could have
avoided this whole mess by confirming the trail and treatment of ESI as
it passed hands from the client to opposing counsel. Similarly, the
court noted that B&G and its counsel could have easily resolved the
dispute before either hearing by handing over the live bunny: "by
producing the complete metadata load files from the Introspect database
for the TIFF images." So, don't kill the bunny. Don't lie about who
killed the bunny and when. Don't try to get away with it using lame
excuses as to why you killed the bunny. And don't try to redeem
yourself with a brain-damaged bunny. Instead, to avoid sanctions,
especially when document requests specifically ask for ESI in native
format (as almost all do now), turn over the bunny.

Alive and kicking.


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