E-Discovery Newsletter (January 2008)

January 29, 2008

Attorneys Producing ESI Should Pay Close Attention to the Technical Details

Often in large productions of electronically stored information (“ESI”), attorneys rely heavily on technology professionals to create the production sets. It is important, however, that the producing party’s attorneys understand the technology in order to ensure that ESI is produced in a format that is acceptable to the opposing party (and the court) and so that privileged information is not inadvertently produced. For example, if the parties agree to exchange certain field data with TIFF or PDF images, the attorney producing the ESI should ensure that the fields do not contain privileged information that may have been redacted from the TIFF or PDF images. In addition, as described in the PSEG case below, the producing party should ensure that “families” of documents are preserved such that the receiving party can easily identify which documents were attached to other documents. Otherwise, the opposing party loses the benefit of putting the original “parent” document in context and may challenge the production. The best way to avoid disputes regarding these issues is to stay informed of the technical issues related to the production and reach agreement with opposing counsel prior to the production.

Notable Recent Rulings in E-Discovery

  • Court Requires Plaintiff to Reproduce Documents Together With Attachments: PSEG Power New York, Inc. v. Alberici Constructors, Inc., 2007 WL 2687670 (N.D.N.Y. Sept. 7, 2007)(slip copy)

In this case, plaintiff PSEG produced 3000 e-mails to the defendant without joining the e-mails with their attachments. The separation of the e-mails from the attachments was caused by a glitch in “the interface between the different software used by PSEG and the vendor when reducing the documents in a form that could be reviewed by counsel.” 2007 WL 2687670 at *2. After the defendant complained about the problem, the parties explored a number of options in an attempt to fix the problem. All of the parties’ attempts failed. For example, PSEG provided the defendant with an Excel spreadsheet that purported to list the documents and corresponding Bates numbers, but the defendants were unable to locate most of the attachments using the spreadsheet. PSEG also offered to provide specific attachments requested by the defendant, but that also failed, as the defendant claimed it did not receive all of the attachments requested. Each party estimated the cost to fix the problem and the estimates ranged from $40,000 to more than $200,000. After examining the issue, the court ordered PSEG to rectify the problem at its own expense by either re-producing the e-mails with the attachments or through some other method (such as a spreadsheet) that identified e-mails with their attachments previously produced. Near the end of the court’s opinion, the court noted that “But for PSEG’s vendor creating this e-mail attachment fiasco, we would not be having this discussion.” Id. at *12.

  • Supreme Court of Alabama Grants in Part a Writ of Mandamus Requiring the Trial Court to Analyze the Burden of E-discovery Pursuant to the Federal Rules: Ex parte Cooper Tire & Rubber Co., 2007 WL 3121813 (Ala. 2007)(slip op.)

In this case, plaintiffs sued Cooper Tire & Rubber Co., alleging that the tread separated from a defectively manufactured and designed tire, causing a fatal collision. Plaintiffs in the underlying litigation sought discovery of documents related to the design and manufacture of Cooper’s tires, including documents related to other accidents and injuries allegedly caused by defects in Cooper’s tires. Cooper resisted the discovery, claiming that it was unduly burdensome, expensive and would result in irrelevant and duplicative materials. The trial court ultimately ordered Cooper to produce many of the documents sought by plaintiffs, including documents related to other accidents, injuries and claims in other states. The trial court also rejected Cooper’s proposal to limit discovery to the model number of the tire at issue, holding that “Cooper’s duty to produce information relates to documents concerning the same or a substantially similar defect.” 2007 WL 3121813 at *6. Cooper then filed a writ of mandamus with the Alabama Supreme Court, seeking relief from the trial court’s discovery order. Cooper argued that it had no adequate appellate remedy because enforcement of the trial court’s order would immediately cause undue burden to Cooper and excessive costs in the range of millions of dollars. The Supreme Court granted the writ in part. The Court held that the trial court erred in allowing discovery of documents related to tire failures other than tread separation. The Court also, while deferring to the trial court’s discretion, ordered the trial court to “specifically address Cooper’s arguments that compliance with the plaintiffs’ requests for the discovery of e-mails is unduly burdensome in light of the recent federal guidelines on that subject.” Id. at *17. The Court then directed the trial court to enter a protective order to the extent it finds the production of ESI overly burdensome.

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