Some Things Are Not Worth Doing Twice
February 14, 2011Why do something twice when you could have done it correctly the first time? When an opposing party requests production of electronically stored information, you are required to produce that information in the form that it is ordinarily maintained in your system. If you make any changes to the form of that electronic information, that renders it more difficult for the opposing party to use it, a court will likely make you produce the information a second time correctly. Who has time to produce information twice? Who is going to explain to your client why you had to bill them twice to accomplish one thing?
That is exactly what the court ordered a company to do in Jannx Medical Systems, Inc. v. Methodist Hospitals, Inc. In that case, Methodist requested electronically stored information from Jannx during discovery but they did not specify what form they wanted the information to be in. Jannx normally maintained its electronic information in a fully searchable format but produced its electronically store information to Methodist during discovery in PDF form.
Jannx argued that because Methodist did not specify what form they wanted the information to be produced, they were free to put the information into any form they wanted. Methodist claimed that Jannx destroyed Methodist’s ability to effectively search and analyze this information because it was in PDF form.
As a result of receiving the information in PDF form, Methodist motioned to compel Jannx to produce their electronically stored information in a form that allowed them to search and analyze it. The Court entertained briefs from both parties on their interpretation of Rule 34 of the Federal Rules of Civil Procedure for Production of Documents in Reasonable Electronic Form. Under Rule 34, “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 reasonable usable form or forms” (emphasis added). U.S.C.S. Fed. Rules Civ. Proc. R 34.
Methodist contended that Jannx failed to adhere to Rule 34 because it did not produce information in the form that it is ordinarily maintained or in reasonably usable form. Essentially, Methodist followed a plain reading of the rule and argued that because Jannx produced the information in PDF form they violated the rule. They believed the PDF form was not the normal form Jannx used and it was not reasonably usable because it could not be searched or analyzed.
Jannx countered by claiming that they were in compliance with Rule 34 because Methodist did not specify the exact form that Jannx was required to use. The result is that Methodist would be stuck with the form that Jannx chose to produce because they failed to specify what form they preferred.
The Court sided with Methodist and held that under Rule 34, Jannx was required to produce electronically stored information in a format that allows that information to be reasonable usable. This meant that Jannx could not get away with using the PDF format, but rather had to produce the information a second time in a form that was searchable. Importantly, the Court found that because Jannx ordinarily maintained its information in a way that was searchable, they could not produce the information in a form that removes or significantly degrades this feature (emphasis added).
There is an important lesson to learn here. Companies should not rely on outside counsel or employees with less than adequate knowledge of the Federal Rules of Civil Procedure when it comes to e-discovery. Courts will not tolerate parties’ attempts to prolong or complicate e-discovery through use of tactics that make it burdensome to search and analyze electronically stored information.
There is some latitude given to the field of electronically stored information because of its age but that latitude should not be interpreted as a free for all. Interpreting the Advisory Committee’s notes on Rule 34’s 2006 Amendments, the Court stated a responding party is not free to convert electronically stored information from its ordinary form to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation.
The Court granted Methodist’s motion to compel and ordered Jannx to produce information in a format that allows the information to be reasonably usable. The Court also required Jannx to pay the reasonable expenses, including attorney’s fees that Methodist incurred as a result of the motion to compel.
Companies and their counsel are not able to escape production of electronically stored information because they were not asked for a specific form. Courts are looking for gamesmanship and skewing the form of information will only catch up with the party in the end, costing the company and its counsel time, effort and worst of all money. Do it right the first time; after all, some things are not worth doing twice.
Michael Paragano, a 3rd year law student at the Seton Hall University School of Law. He can be contacted at michael.paragano(at)gmail.com
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Tagged as: Accessibility, Production of Data.
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It’s simple things, like doing the right thing the first time that separates the good attorneys from the bad these days.
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