Josh Gilliland is a California attorney who focuses his practice on eDiscovery. He posted a blog titled, “Don’t Produce ESI as a Few PDFS Over 8,000 Pages.” Below is an overview.
There are some significant “don’ts” in civil litigation. Printing ESI before scanning it as a few PDFs totaling 8,000 pages for production is one of them. This case had that wrong life choice plus a few more.
The case involved multiple defendants getting into a giant discovery fight with plaintiffs over the form of production. One of the media defendants stated the form of production was for the Plaintiff to produce ESI in TIFF image format from native files, along with load files. Other defendants stated the form of production as a native format, metadata and attachments, and complete email chains.
The Plaintiff opted not to follow the stated form of production instructions and instead printed ESI as hard copy and then scanned as PDF files that stripped any metadata from the production.
The Defendant attempted a meet over the ineffective and non-conforming production. The Defendant argued that Plaintiff appeared to have not completed a search and collection of ESI. Additionally, the Defendant demanded that Plaintiff commits to a completion date for their production. The Plaintiff didn’t meet the deadline, and the Defendant learned the Plaintiff had not yet started their search or retained an eDiscovery vendor. Plaintiff offered their “assurance” they were working on “the ESI issue.
The Magistrate Judge was not happy with the Plaintiff’s discovery conduct, from search to producing ESI as scanned PDFs. The Magistrate Judge found that the Plaintiff’s attorney “absolutely misrepresented” when the discovery would be created and had “grave concerns” the lawyer had not followed their “ethical obligations” in their representations to opposing counsel.
For more details, read the entire blog online.
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