MULTNOMAH BAR ASSOCIATION

OCTOBER 26, 2010

E-DISCOVERY IN STATE COURTS
Seth H. Row
Parsons Farnell & Grein LLP
srow@pfglaw.com

I. PRESERVATION OBLIGATIONS AND SPOLIATION OF ELECTRONICALLY

STORED INFORMATION

The information below draws on cases from outside of Oregon, and involving mostly
federal rules of civil procedure. However, now that electronically stored information (ESI) will
be expressly subject to discovery in Oregon state court practice, the same rules and principles
should be generally applicable to any case being litigated in Oregon courts.

Spoliation of evidence occurs when a piece of information that is relevant to a particular

matter in litigation is destroyed or rendered inaccessible. The concept of “spoliation”
encompasses many kinds of conduct, from the merely negligent to the willful. Parties have a
duty to guard against spoliation of evidence. With the advent of electronic discovery, spoliation
issues have regained prominence. Therefore, practitioners need to understand A) when the duty
to preserve – that is, to guard against spoliation – is triggered; B) what the ramifications of
spoliation are (which is important to know in large part in order to convince others, particularly
your clients, that they need to take the duty to preserve seriously); C) how to protect yourself and
your client from a claim of spoliation; D) what to do if you suspect that the other side has
spoliated evidence.

A. Triggering the Duty to Preserve - Pre-Litigation Duties - Document Retention

Policies

It is clear that the duty to preserve evidence begins when a case is filed. However, the
duty to preserve evidence, including electronic evidence, may arise before a claim is filed.
Guidance for when this obligation arises with regard to electronic information is the same as for
paper documents: the obligation to preserve arises whenever a party reasonably should know that
litigation is forthcoming. See, e.g., Silvestri v. General Motors Corporation, 271 F.3d 583, 591
(4th Cir. 2001) (duty to preserve evidence arises when party reasonably should know that evidence
may be relevant to anticipated litigation).

In a few cases courts have sanctioned parties who destroyed documents pre-filing. What is
often at issue in these cases is the reasonableness of the party's document retention/destruction
policy, which is usually offered to excuse or explain the destruction. Courts have long recognized
that a reasonable retention policy may be the basis for a defense to spoliation. See, e.g., Arthur
Anderson LLP v. United States, 544 U.S. 696, 705, 125 S. Ct. 2129, 2135 (2005) ("It is, of course,
not wrongful for a manager to instruct its employees to comply with a valid document retention
policy under ordinary circumstances."); Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 69
(S.D.N.Y. 1991) (potential evidence destroyed under record retention policy demonstrated that
destruction was negligent and not intentional); Carlucci v. Piper Aircraft Corporation, 102 F.R.D.
427, 481-82 (S.D. Fl. 1984) (finding that good faith destruction of information pursuant to bona
fide document retention policy could justify failure to produce documents in discovery).

As has always been the case with paper documents, once a party is on notice that
documents may be relevant (whether or not a discovery request has been made), it has a duty to
suspend any retention/destruction policy. The failure to do so may result in sanctions. Wiginton v.
C.B. Richard Ellis, Inc., 02C-6832, 2003 W.L. 22439865, at *7 (N.D. Ill. October 27, 2003)
(failure to suspend routine document retention policy once party is put on notice that documents
scheduled to be destroyed may be relevant in litigation will cross from negligence to bad faith).

The following cases are examples of courts holding that a document retention policy that
allowed documents to be destroyed was reasonable: United States v. Tabor Extrusions, L.P., No.
400CV00255, 2001 LEXIS 24600, at *8-9 (E.D. Ark. December 27, 2001) (government's
destruction of documents under retention policy calling for destruction after six years and three
months was reasonable; absent evidence that government should have known documents would
become material, no sanction was appropriate); McGuire v. Acufex Microsurgical, Inc., 175
F.R.D. 149, 155-56 (D. Mass. 1997) (employers' policy allowing managers to discard drafts of
internal investigation reports was reasonable).

The following cases are examples of the cases in which the court held, or at least had
evidence to suspect, that the retention policy being offered as a defense to destruction of records
was not reasonable: Rambus, Inc. v. Infineon Technologies A.G., 220 F.R.D. 264, 286 (E.D. Va.
2004), subsequent determination, 222 F.R.D. 280 (E.D. Va. 2004) (ordering discovery of
attorneys' files about clients document retention program where evidence showed that prior to
filing patent infringement lawsuit, client at attorneys' direction had conducted a "shred day"); In
Re Prudential Insurance Companies of America Sales Practices Litigation, 169 F.R.D. 598, 615
(D.N.J. 1997) (adverse inference justified despite lack of evidence that employees intentionally
destroyed relevant documents; company's "haphazard and uncoordinated approach to document
retention" prejudiced opposing party); Reingold v. Wet n' Wild Nevada, Inc., 944 P.2d 800, 802
(Nevada 1997) (defendant sanctioned for spoliation; document destruction policy calling for
destruction of documents shortly before statute of limitations expired unreasonable where claims
were foreseeable);; Telectron, Inc. v. Overhead Door Corporation, 116 F.R.D. 107, 123 (S.D. Fl.
1987); Lewy v. Remington Arms Company, 836 F.2d 1104, 1112 (8th Cir. 1988) (directing district
court to consider in evaluating whether spoliation instruction should be given, whether party's
retention policy was reasonable in light of history of lawsuits filed or complaints made in the
past; district court should consider whether frequency or magnitude of past complaints render
policy on destruction of future documents unreasonable).

The law regarding what is sufficient notice to trigger the duty to preserve is constantly
developing as parties become more and more aggressive about asserting claims of spoliation of
evidence. Courts have recently considered whether the following events will trigger the duty:

 A subjectively frivolous EEOC charge?

 A subpoena for documents - does it trigger a duty to preserve other documents if

the party may later become more generally involved in the litigation?
  A lawsuit against by a competitor against another competitor for patent
infringement?

 A complaint from a customer that he was injured by a product?

The answer to questions like these will often depend on the company’s history of
litigation. Has that kind of event, in the past, led to litigation? If so, the duty to preserve is more
likely to have been triggered.

B. Selected Cases on the Ramifications of Spoliation of Electronic Information

In the last several years there have been many cases considering whether, and if so, what,
penalties should be imposed for spoliation of electronic evidence. Below are synposes of just a
few of these cases.

- Qualcomm Inc. v. Broadcom Corp., 2008 WL 66932 (S.D. Cal. Jan. 7, 2008).

In patent litigation, plaintiff intentionally failed to produce over 46,000 responsive emails
and attempted to hide their failure to produce. Plaintiff used the absence of evidence that would
have been established by missing emails in arguments to jury. Court imposed monetary
sanctions of $8,568,633 against plaintiff, representing all of defendant’s litigation costs and fees.
Based on finding that outside litigation counsel ignored warnings that plaintiff’s production of
documents was incomplete, and assisted plaintiff by “reckless conduct,” court directed plaintiff’s
counsel to participate in remedial education on preservation of evidence, among other things.
Court also referred matter to California State Bar for investigation of attorneys for potential
ethical breaches.

- United States v. Philip Morris USA Inc., 2005 LEXIS 13580 (D. D.C. July 21,
2004).

Government complaint alleged, among other things, that Philip Morris researched how to
target-market its tobacco products to minors. Court entered order for the preservation of all
documents and information potentially relevant to the case. Subsequently, Philip Morris deleted
all e-mails more than 60 days old for a period of two years after entry of the preservation order.
The government then moved for evidentiary and monetary sanctions. Court found that many e-
mails were lost as the result of an automatic deletion process that was not modified to comply
with its preservation order and that eleven of Philip Morris's highest ranking employees failed to
follow the company's general document retention and preservation policy. Noting the complete
destruction of the evidence, the court deemed itself unable to evaluate the harm to the
government's case and imposed a $2.75 million monetary sanction against Philip Morris for its
violation of the preservation order.

- Omega Patents, LLC v. Fortin Auto Radio, Inc., 2006 WL 2038534 (M.D. Fla.
July 19, 2006).

Court imposed monetary sanctions against defendant under Rule 37(d) based upon
defendant's delay in producing responsive e-mails notwithstanding defendant's assertion that it
could not have produced them sooner without incurring "undue burden and expense."
 - Coleman Holdings, Inc. v. Morgan Stanley & Company, Inc., No. CA03-5045AI,
2005 W.L. 674885 (Fl. Cir. Ct. March 23, 2005)

Uncoordinated search for back-up tapes led to late discovery of documents, partial
default judgment and $1.5 billion damages verdict.

- In re Telxon Corp. Securities Litigation, 2004 WL 3192729 (N.D. Ohio 2004)

Sanction of default judgment against defendant warranted where defendant destroyed or

failed to preserve electronically stored information, including metadata, in violation of order,
where defendant was one of "big four" accounting firms experienced in litigation.

- Williams v. Sprint/United Management Co., 230 F.R.D. 640 (D. Kan. 2005)

No sanction warranted for destruction of metadata where production of metadata was

new area of law and practice and preservation order had been ambiguous as to metadata.

- Krumwiede v. Brighton Associates, LLC, 2006 WL 1308629 (N.D. Ill. May 8,

2006).

Plaintiff sued former employer alleging various causes of action including breach of
employment agreement and back wages. Former employer filed counterclaim for breach of non-
compete agreement and misappropriation of business opportunities. Court found that plaintiff
was responsible for willful, bad faith spoliation of evidence and other "hide the ball tactics" and
entered summary judgment for former employer on counterclaims.

- In re Old Banc One Shareholders Securities Lit., 2005 WL 3372783 (N.D. Ill. Dec.
8, 2005).

Defendant in class action securities litigation was sanctioned for negligent failure to
institute and communicate a "litigation hold" or document preservation notice within the
organization.

- Mosaid Technologies, Inc. v. Samsung Electronics Co., Ltd., 2004 U.S. Dist.
LEXIS 23596 (D.N.J. July 7, 2004), affirmed, 2004 LEXIS 25286 (Dec. 7, 2004).

Plaintiff alleged patent infringement by defendant. Plaintiff sought e-mails based on

testimony of former Samsung designer regarding the extensive use of e-mail by Samsung
technical personnel. Samsung did not institute a policy to preserve electronic information until
well after suit was filed and therefore was unable to produce relevant electronic information,
including e-mails, because they had been automatically purged from Samsung's computer
system. Magistrate judge recommended an adverse jury instruction that the purged information
would have been harmful to Samsung's defense, characterizing Samsung's conduct as "at the
least, extremely reckless behavior." Magistrate's recommendation affirmed and upheld by
District Judge.
 - Phoenix Four, Inc. v. Strategic Resources Corp., 2006 WL 1409413 (S.D.N.Y.
May 23, 2006).

Court cited proposed Fed. R. Civ. P. 26(a) and 26(b)(2) in determining that respondent
and its counsel failed to properly search all sources of potentially relevant documents when they
did not search a hidden partition of a server hard drive.

- Tilberg v. Next Management Co., 2005 WL 2759860 (S.D.N.Y. October 24, 2005).

Court ordered plaintiff to share the cost of the forensic expert hired by defendant to
search its e-mail servers for purposes of responding to plaintiff's discovery requests. Plaintiff
subsequently asserted that expert was unable to access one server and found evidence indicating
that additional responsive documents existed despite defendant's assertions to the contrary.
Based on this evidence, court extended discovery deadline in plaintiff's favor.

The case law on the ramifications of spoliation of electronic evidence is constantly

evolving. Practitioners should keep themselves abreast of this case law or become familiar with
how the law of spoliation is evolving in the type of litigation that they practice by visiting one of
the many online, searchable databases of e-discovery case law, such as K&L Gates’ case
database, at https://extranet1.klgates.com/ediscovery/Search.aspx.

Attached to these materials is a very recent decision in a civil right matter in the Middle
District of Florida that will be discussed during the presentation.

C. The Litigation Hold & How to Protect Yourself & Your Clients

1. Important Case Law on Litigation Holds & Electronic Evidence

The concept of a litigation hold is not new. However, with the advent of electronic
discovery, spoliation of evidence -- and therefore the litigation hold -- has taken on a new
prominence. This is because electronic information is more fragile, and more likely to be
inadvertently destroyed, than paper documents. The sheer volume of electronic data created by
any organization means that most organizations have to have a mechanism for automatically
deleting or archiving the information. In addition, because electronic information can often be
deleted by simply hitting a key, the risk of accident loss is increased.

The starting place for discussion of the case law on counsel’s duty with regard to
litigation holds in the area of electronic discovery is the Zubulake series of decisions out of the
Southern District of New York. Practitioners would do well to familiarize themselves with the
facts and essential holdings of this series of decisions because they are frequently cited in both
federal and non-federal cases.

The Zubulake series of decisions were issued in 2003-2004, in the context of a hotly
contested employment discrimination case, by Judge Shira Scheindlin of the U.S. District Court
for the Southern District of New York. The Zubulake court’s emphasis on the active involvement
of counsel regarding the institution and monitoring of "litigation holds" foreshadowed and
informed the 2006 revisions to the Federal Rules. The spoliation issues arose during a phase of
the litigation discussed in the decision commonly referred to Zubulake IV.
 During the course of the backup tape restoration project that was the subject of Zubulake
III, the parties discovered that some of the backup tapes were missing. Zubulake v. UBS Warburg
LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) ("Zubulake IV "). In addition, certain isolated e-mails
created after UBS supposedly began retaining all relevant e-mails were deleted from UBS's
system (though they appeared to have been saved on the backup tapes) despite the following
policies implemented by UBS:

- Shortly after Zubulake filed her EEOC charge, UBS issued an oral directive to its
employees to retain all potentially relevant documents including e-mails and backup tapes.

- After Zubulake's counsel specifically requested e-mails stored on backup tapes, UBS's
outside counsel orally instructed UBS's information technology personnel to discontinue their
practice of recycling backup tapes.

The remedies sought by the plaintiff were: a) an order requiring UBS to bear the full cost
of restoring the remaining backup tapes; b) an adverse inference jury instruction with respect to
the content on the missing backup tapes; and c) an order directing UBS to bear the cost of re-
deposing certain individuals concerning the issues raised in newly produced e-mails.

The court began by noting that the loss or destruction of documents that should have been
preserved for purposes of threatened or pending litigation has the potential to cause significant
prejudice to the adverse party. The specific questions presented were how to determine an
appropriate penalty for the party that caused the loss and, conversely, how to determine an
appropriate remedy for the party injured by the loss. The court recognized that this already
difficult issue was further complicated in the case of electronic discovery, both because it is
easier to delete or tamper with (both intentionally and inadvertently) and because it is difficult
for litigants to craft and follow policies to ensure that all relevant electronic information is
preserved. Thus, the opinion in Zubulake IV addressed both the scope of a litigant's duty to
preserve electronic information and the consequences of a failure to preserve electronic
information that falls within the scope of that duty.

With respect to the duty to preserve evidence, the court recited the existing general rule
that a party’s obligation to preserve potentially responsive records (including electronic data) for
purposes of litigation arises when the party has notice that the evidence is relevant to litigation or
when the party should have known that the evidence may be relevant to future litigation. Id. at
216. Once the obligation to preserve is triggered, a party is not obligated to preserve every shred
of paper or byte of electronic data in its organization. It must, however, preserve relevant
evidence that might be useful to an adversary. This includes all information that it knows (or
reasonably should know) is relevant to the action or potential action, that is reasonably calculated
to lead to the discovery of admissible evidence, and that is reasonably likely to be requested
during discovery and/or is the subject of a pending document request. The duty of preservation
extends to all employees and agents who are likely to be in possession of information to which
the duty applies, including "key players" and information technology staff. The duty extends not
only to documents in existence at the time the duty attaches, but to all relevant documents
created thereafter.
 The Zubulake court stated that a party fulfills the duty to preserve through the prompt
creation of and adherence to a discovery management plan that includes the immediate
distribution of a "preservation directive" or "litigation hold" and the suspension (or partial
suspension) of its routine document retention/destruction policy as it pertains to relevant
documents or categories of documents.

The problem was that while UBS's counsel issued such a preservation directive on a
timely basis, and adherence to the directive would have met UBS's preservation obligations,
UBS's employees did not fully comply with the directive. Further, some of the "lost" tapes
should still have been in existence pursuant to UBS's standard document retention/destruction
policies without reference to the preservation directive.

The court then outlined the three elements an aggrieved party must establish as a
prerequisite to an adverse inference instruction or other sanctions due to spoliation of evidence.
These elements were drawn from case law in the Second Circuit, but these same factors are used
in virtually all jurisdictions:

1) that the party having control over the evidence had an obligation to preserve it at the
time that it was destroyed;

2) that the records were destroyed with a "culpable state of mind" (which includes
ordinary negligence and does not necessarily require bad faith);3 and

3) that the destroyed evidence was "relevant," not just in the ordinary sense as tending to
prove or disprove a material fact, but also meaning that a reasonable trier of fact could
find that it would have been favorable to the party moving for sanctions as being
supportive of one or more of its claims or defenses.4

The court found that UBS's duty to preserve had attached and that the loss/destruction of
the information was negligent and possibly reckless (though not willful), but that Zubulake failed
to prove that the information was likely to support her claims. As a result, the court refused to
give an adverse inference instruction to the jury – noting that such an instruction is an extreme
sanction that should not be imposed lightly since it tends to make it virtually impossible for the
sanctioned party to ultimately prevail on the merits. The court did, however, require UBS to bear
the plaintiff's costs for re-deposing certain witnesses for the limited purpose of inquiring into
new issues raised by the destruction of evidence and any newly discovered e-mails.

Zubulake IV did not mark the end of issues relating to spoliation in the case. In Zubulake
V (Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004)), after 2 years of discovery
disputes and 4 prior written opinions, Zubulake again moved to sanction UBS for failure to
produce/tardy production of relevant information. In deciding the sanctions issue, the court
framed the questions to be decided as: 1) whether UBS failed to preserve and timely produce
relevant information; and 2) if so, whether it acted negligently, recklessly or willfully.

In its opinion, the court wrote at length on the importance of lawyers and clients
communicating clearly and effectively with each other throughout the litigation process and
noted that when such communication breaks down, there are "usually casualties."
 The court used its opinion as an opportunity to expound on: 1) counsel's obligation to
ensure that all relevant discoverable information is preserved by giving clear instructions to the
client to preserve such information; and 2) the client's obligation to heed those instructions. The
court noted that, early in the litigation, UBS's inside and outside counsel directed it to retain
relevant electronic information. Notwithstanding those instructions, UBS employees deleted
relevant e-mails and other employees never produced relevant information to counsel. As a
result, some e-mails responsive to discovery requests were deleted, and perhaps permanently
lost, and others were produced approximately 2 years late. Counsel, in turn: 1) failed to request
retained information from one key employee; 2) failed to provide "litigation hold" instructions to
another key employee; 3) failed to communicate adequately with another employee about how
she maintained her computer files; and 4) failed to safeguard backup tapes that might have
contained some of the deleted e-mails, which would have mitigated the damage done by UBS's
deletion of those e-mails. Based on these facts, the court found that sanctions were warranted.

After discussing the history of the discovery saga, the law of spoliation of evidence, the
continuing obligation of clients and counsel to locate and preserve relevant information, and the
failure of both UBS and its counsel to meet those obligations, the court concluded that the
failures of both UBS and its counsel were willful and that the lost information would be
presumed relevant. In determining what sanctions would be appropriate, the court considered
the following goals: the punishment of UBS, the deterrence of future misconduct and the
restoration of Zubulake to the position she would have been in had UBS faithfully discharged its
discovery obligations. The sanctions assessed by the court included giving an adverse inference
instruction to the jury with respect to the missing e-mails, assessing UBS with the cost of any
depositions or re-depositions necessitated by the late production, requiring UBS to bear the cost
of restoring and producing e-mails from various backup tapes as well as the cost of any
depositions or re-depositions related to the information recovered from the backup tapes, and
ordering UBS to pay all expenses and attorney's fees incurred by Zubulake in connection with
her motion for sanctions.

2. Advising Your Client on Preservation of Evidence

Advising the client as soon as the duty to preserve has been triggered – and, indeed,
making a specific inquiry into when the duty has been triggered – is an imperative. The client’s
interests will be protected from a future spoliation claim, and the attorney will be protected from
any allegation (by the court, the opponent, or the client) of failing to act quickly enough. As the
cases above demonstrate, courts are increasingly willing to look at the actions of outside counsel
as well as in-house lawyers and businesspeople when assessing whether sanctions should be
levied after there has been spoliation.

The following is a general guide to protecting your client and yourself:

 As soon as you are retained, ask yourself whether the duty to preserve has been
triggered. Is litigation reasonably likely? Assess what has happened so far. Has
there been an EEOC charge, a demand letter, a complaint from an injured
customer, a claim notice from an insurance company? Any of these are likely to
be sufficient notice of reasonably likely litigation. Write a memo to the file
documenting your analysis.
  If the duty to preserve has been triggered, check to see if the client has
implemented any kind of litigation hold. If the answer is yes, ask for a copy,
along with the distribution list and any documentation confirming receipt. Ask
the client how they came up with the distribution list. Ask if IT has been advised
of the hold and what IT has done. Advise the client that you now have a duty to
be involved in monitoring compliance with the hold.

 If the client hasn’t done anything yet, send the client a memo advising them of the
need to issue a litigation hold and follow up with a discussion. Tell them that you
need to be involved in creating the hold memo and determining the distribution
list, and monitoring compliance.

 Discuss with the client the likely custodians (individual and departmental) of
relevant information. Learn about the client’s information management practices
– both formal and informal. Who creates potentially relevant data? Where do
they keep it? Who else has access to it? What retention periods or processes
apply to the data? Create a distribution list. Make sure to include the IT personnel
responsible for any janitorial/automatic functions applicable to storage media or
applications.

 Get the litigation hold out right away. Include enough specificity (time frames,
topics, names of players in the dispute) that the people on the distribution list will
be able to determine whether they have responsive information. Be over-
inclusive. Require that recipients acknowledge that they have read and
understand the directive. Ask for feedback, questions, or concerns.

 If a data source is under individual control (e.g., data stored on a user’s desktop
hard drive), assess whether it is reasonable to ask the individual user simply not to
delete or alter the data, or whether the data needs to be copied off of the storage
device in order to make sure that the data is preserved. Do not assume that
document retention or storage policies are being followed.

D. What to Do If You Suspect Spoliation - Discoverability of Preservation and

Production Information

If you suspect that spoliation has taken place, your first instinct may be to run to the
judge. In some cases that may be the correct move. However, in most instances, you will need
more specific information to back up your suspicions. That is where the concept of discovery-
about-discovery comes in. Where the propounding party has a good-faith basis for seeking such
discovery, and if the responding party has nothing to hide, counsel will generally be able to reach
a compromise that allows some discovery to take place. However, so-called “meta-discovery” is
sometimes used as a tactic, and can be rife with problems of privilege, expense and the specter of
harassment. As a result, meta-discovery should be and can be resisted if the propounding party
is unable to show a genuine need or basis for it.
 1. Discoverability Generally

Meta-discovery will generally be allowed where the propounding party has an objective
and good faith basis for believing that information has been wrongfully withheld or destroyed.
See American Fast Freight, Inc. v. Nat'l Consol. & Distrib., Inc., 2007 WL 3357694 (W.D.
Wash. Nov. 7, 2007) (compelling production of documents regarding data preservation where
responding party failed to include electronic data in initial disclosures); see also McKenna v.
Nestle Purina PetCare Co., 2007 WL 433291 (S.D. Ohio Feb. 5, 2007) (ordering defendant to
answer questions in follow up discovery about discrepancy between its inability to retrieve
emails requested in litigation and its ability to access such emails at time of plaintiff's
termination).

Where the propounding party relies on mere suspicion that information has been
withheld, however, meta-discovery will be denied. Kellogg v. Nike, Inc., 2007 WL 4570871 (D.
Neb. Dec. 26, 2007) (plaintiff's counsel's "incredulity" at defendant's inability to produce certain
documents was an insufficient basis to permit meta-discovery in light of defendant's explanations
for scope of information provided).

Courts are particularly loath to allow discovery into one common target of meta-
discovery: preservation instructions (aka litigation "holds") issued in connection with litigation.
Such preservation instructions, if created after litigation began or was reasonably foreseeable, are
generally protected by attorney-client privilege or the work product doctrine and shielded from
discovery. See Gibson v. Ford Motor Co., 2007 WL 41954, *6 (N.D. Ga. Jan. 4, 2007) (noting
that “[i]n the Court’s experience, these instructions are often, if not always, drafted by counsel,
involve their work product, are often overly inclusive, and the documents they list do not
necessarily bear a reasonable relationship to the issues in litigation.”); see also Muro v. Target
Corp., 2007 WL 3254463 (N.D.Ill. Nov. 2, 2007) (denying request for production of litigation
hold); E.E.O.C. v. Boeing Co., 2007 WL 1146446 (D.Ariz. April 18, 2007) (denying request for
Rule 30(b)(6) deposition on document preservation because topic covered by work-product
protection). However, even information that is arguably protected as work-product may become
fair game for discovery if there are serious questions about spoliation of evidence. See
Qualcomm, Inc. v. Broadcom Corp., 2008 WL 638108, *3 (S.D. Cal. March 5, 2008).

Courts have also denied meta-discovery where a party was able to show that the opponent
may have destroyed documents in another case, but had no evidence of such tactics in the
present case. See In re Honeywell Intern., Inc. Securities Litigation, 230 F.R.D. 293, 302
(S.D.N.Y. 2003) (denying discovery of a non-party’s specific document production efforts
pursuant to a subpoena, as well as general document retention policies, despite evidence of
document destruction by the defendant in an unrelated matter). The discovery sought also must
be targeted to documents or ESI that are directly relevant to a party's claim or defense, as
opposed to documents relevant to the general subject matter of the action. If the dispute
concerns the production of documents that are only relevant to the general subject matter of the
litigation, the request for additional discovery may be denied. See E.E.O.C. v. Boeing Co., 2007
WL 1146446, *2 (D. Ariz. April 18, 2007) (refusing to allow corporate deposition about efforts
to locate certain requested documents where documents were only relevant to general subject
matter, but not to EEOC's claims or Boeing's defenses); see Fed. R. Cir. P. 26(b)(1).
 One effective way to thwart a motion to compel meta-discovery is to provide the court
with detailed information in the form of affidavits to rebut the moving party's factual contentions
supporting the request for additional discovery. This is particularly the case where discovery is
sought regarding the producing party's contention that ESI is not "reasonable accessible" and
thus not subject to discovery under Rule 26(b)(2)(C). For example, in E.E.O.C. v. Boeing Co.,
2007 WL 1146446, *3 (D. Ariz. April 18, 2007), Boeing was able to defeat a motion to compel a
Rule 30(b)(6) deponent to answer questions about the company's estimated cost to produce
certain types of email. The court held that Boeing had already provided sufficient information to
the court in the form of affidavits on that topic, in response to the EEOC's motion to compel the
email itself. Id.; see Petcou v. C.H. Robinson Worldwide, 2008 WL 542684, *1 (N.D.Ga. Feb.
25, 2008) (magistrate had denied motion to compel production of emails alleged to be not
"reasonable accessible" with leave to move for reconsideration after taking discovery on
accessibility issue; motion for reconsideration subsequently denied); cf. Wells v. Xpedx, 2007
WL 1200955 (M.D. Fla. April 23, 2007) (opposing party's failure to provide the court with
detailed information about its data preservation policies and practices, efforts to search for and
retrieve responsive information, and computer system capabilities led to court permitting
Rule 30(b)(6) deposition of IT personnel).

2. Remedies

If meta-discovery is being used as a tactic the propounding party will usually seek a great
deal of access and information in an effort to drive up costs. Courts, having grown wise to such
tactics, frequently limit the scope of the remedy and in some cases have fashioned their own
remedies to fit the facts of the case. The remedies available once meta-discovery has been
deemed appropriate generally range from the mild, see ATM Exchange, Inc. v. Visa Int'l Serv.
Ass'n, 2007 WL 1674230 (S.D. Ohio June 7, 2007) (ordering defendant to provide new verified
discovery responses addressing alleged failure to produce responsive documents and lack of
document retention policy); Google Inc. v. Am. Blind & Wallpaper Factory, Inc., 2006 WL
3290402 (N.D. Cal. Nov. 13, 2006) (ordering party to verify that it had made good faith effort to
produce all responsive information); In re Kmart, 371 B.R. 823 (Bankr. N.D. Ill. 2007) (ordering
party to re-do search for documents), to slightly intrusive, see Treppel v. Biovail Corp., 2008 WL
866594 (S.D.N.Y. Apr. 2, 2008) (permitting forensic examination of producing party's laptop to
look for allegedly missing documents), to comprehensive, see Vennet v. Am. Intercont'l Univ.
Online, 2007 WL 4442321 (N.D. Ill. Dec. 13, 2007) (ordering defendant to permit plaintiff's
expert to examine phone system and network, and permitting Rule 30(b)(6) deposition of
defendants' records custodian and IT personnel); Wells v. Xpedx, 2007 WL 1200955 (M.D. Fla.
April 23, 2007) (permitting deposition of IT personnel on computer system capabilities).
II. DISCOVERY FROM DATA SOURCES DEEMED “NOT REASONABLY
ACCESSIBLE” 1

Under Federal Rule of Civil Procedure 26(b)(2)(B) a party may resist production of ESI
from sources that are “not reasonably accessible due to undue burden or cost.” Although these is
no corollary in the Oregon state court rules, hopefully Oregon courts will look to the federal
rules and caselaw for guidance on this issue.

The Federal Rules of Civil Procedure provide an outline for how to proceed when faced
with a Rule 26(b)(2)(B) objection. The rule states that “A party need not provide discovery of
electronically stored information from sources that the party identifies as not reasonably
accessible because of undue burden or cost.” The rule establishes a procedure for resolving
disputes over the claim:

On motion to compel discovery or for a protective order, the party from whom
discovery is sought must show that the information is not reasonably accessible
because of undue burden or cost. If that showing is made, the court may
nonetheless order discovery from such sources if the requesting party shows good
cause, considering the limitations of Rule 26(b)(2)(C). The court may specify
conditions for discovery.

This “two-step” process has been criticized by some as duplicative and meaningless.
Nevertheless, it does provide a rules-based approach to challenging the claim. The rule invites a
motion to compel to test the claim.

With a motion to compel in mind, your first step should be to insist that your opponent
fully comply with the “identification” requirement of the rule. The Advisory Committee notes to
the rule make it clear that a responding party invoking Rule 26(b)(2)(B) must:

identify, by category or type, the sources containing potentially responsive

information that it is neither searching nor producing. The identification should,
to the extent possible, provide enough detail to enable the requesting party to
evaluate the burdens and costs of providing the discovery and the likelihood of
finding responsive information on the identified sources.

If you anticipated that this issue might arise, you may have included an instruction in
your request for production demanding that the responding party provide those details in its
response. Under the rule, these questions need not be asked in the form of interrogatories
because the notes make it reasonably clear that the responding party has the obligation to provide
this information at the same time that it responds to the underlying discovery request. Assuming

1
This section is drawn from my article “Probing Claims That Data Is Not Reasonably Accessible,” PP&D, Vol. 17,
No. 1 (2008) the newsletter of The Committee on Pretrial Practice & Discovery of the American Bar Association,
Section of Litigation, and is excerpted here with permission of the American Bar Association. The full version of
the article with additional citations and notations is available at
http://www.abanet.org/litigation/committees/pretrial/home.html.
that you did not receive that information in the discovery response, you should write to your
opponent, referencing the notes and asking that additional detail be provided.

It is important to keep in mind that Rule 26(b)(2)(B) is properly used as an objection to

production of information, not to discoverability of information. Therefore, you should make it
clear to your opponent that you understand its response to indicate that the sources to which it is
referring may contain responsive information that otherwise would be discoverable under Rule
26(b)(1); that is, it has conceded that the source may contain information that is “relevant to any
party’s claim of defense” and that is itself admissible or “reasonably calculated to lead to the
discovery of admissible evidence.”

But what will you do with the detailed information about the source once you have it? If
your opponent takes its obligations seriously, it will give you technical information about the
sources it considers not reasonably accessible. At the same time that you are preparing your letter
demanding a more complete identification of the sources that your opponent has refused to
search, you should be preparing yourself to understand and evaluate its anticipated response. If
you have not already done so in connection with a Rule 26(f) conference, you should give
serious consideration to retaining an electronic discovery consultant to explore the other party’s
contentions.

Hopefully, the letter to your opponent garners a response that gives you information
sufficient to either accept or reject the claim that certain information is “not reasonably
accessible.” But let’s suppose, as is unfortunately likely, that you encounter resistance. Rather
than engage in a lengthy back-and-forth by letter, consider doing some formal discovery to
support your probable motion to compel.

Although courts usually dislike litigants engaging in discovery away from the central
issue in the case, in this situation, the Advisory Committee notes to the rule will support issuing
discovery on e-discovery. The notes state, in the context of a discussion about the two-step,
burden-shifting analysis set out in the rule, that:

. . . the court and parties may know little about what information the sources
identified as not reasonably accessible might contain, whether it is relevant, and
how valuable it may be to the litigation. In such cases, the parties may need some
focused discovery, including sampling of the sources, to learn more about what
burdens and costs are involved in accessing the information, what the information
consists of, and how valuable it is for the litigation in light of information that can
be obtained by exhausting other opportunities for discovery.8

Not only do the notes to the rule specifically contemplate discovery about discovery
(what some call “meta-discovery”) but several courts have also ordered such discovery when the
parties could not agree. For example, in Petcou v. C.H. Robinson Worldwide, the court denied a
motion to compel production of email that was alleged to be “not reasonably accessible,” but
ordered discovery on the accessibility issue, and allowed the requesting party leave to refile the
motion. In Wells v. Xpedx, the court permitted the requesting party to take a corporate
representative deposition under Federal Rule of Civil Procedure 30(b)(6), regarding the
producing party’s data-preservation policies and practices, its efforts to search for and retrieve
responsive information, and its computer system capabilities, because the producing party failed
to provide the court with sufficient information to back up its claim that data was not reasonably
accessible.10

Let me digress a bit to consider what kind of information you should expect from your
opponent concerning its data sources. A common question from clients is what data sources may
be deemed “off limits” under Rule 26(b)(2)(B). The answer to that question, like most such
questions posed to lawyers, is “it depends.” No data sources are necessarily and presumptively
“not reasonably accessible,” because the focus of the rule is on the burden or cost of production
from that source, not on the particular source itself. The burden or cost to the producing party
may arise because of multiple factors. The cost/burden factors that have been recognized by the
Rules Committee, commentators, or courts, include:

• “forensic costs” of converting data from a format that is difficult or impossible to search
or review to another more accessible format (such as the restoration of data from a backup
tape)11

• the cost to review the data for responsiveness, privilege, or other concerns12

• business disruption and “internal” costs

While much has been written about the different categories of data source media
formats—for example, “active” or “online,” “nearline,” “backup,” “deleted,” or “legacy”—it is
clear that under the appropriate circumstances, a party may need to produce information from a
source that appears to be “not reasonably accessible.” Indeed, focusing on the format of any
particular source can lead to a good amount of confusion of the issues. For example, in W.E.
Aubuchon v. Benefirst, the court began with what it called a “media-based analytical approach”
to the issue of whether medical claim files were protected by Rule 26(b)(2)(B).15 The court
repeated Judge Scheindlin’s explanation of the different categories of sources in the Zubulake
cases, which she had designated as either “accessible” or “inaccessible.” The Aubuchon court ran
into a problem applying that analysis to the facts before it and to Rule 26(b)(2)(B) (which was
enacted after the Zubulake cases). The Aubuchon court concluded that the data source at issue—a
server—was “accessible” under the Zubulake analysis; however, the court also held that the data
on the server was not searchable or indexed in any meaningful way. Therefore, the court
concluded that despite the media source being “accessible,” the ESI was “not reasonably
accessible” under the rule because of the time that would be required to review the data for
responsiveness.

Such confusion can be avoided by focusing on the burden associated with complying
with the particular discovery request, rather than the type of media on which it is stored, and by
viewing the media format as but one of several considerations. Therefore, do not be content with
an explanation from your opponent that no documents were produced in response to your
request, reasoning that if responsive documents exist, they are on a backup tape, which is not
reasonably accessible. By letting you know the media type, your opponent has only begun to
answer the hard questions that you should pose to probe its claim.

Whether your opponent plays hardball and requires you to take discovery on the point, or
agrees to provide information to back up its claim voluntarily, probing a claim that data is “not
reasonably accessible” requires asking difficult questions about technical details, vendor
relationships, and litigation planning.

As noted above, simply because the data source is a media format that the conventional
wisdom would call “inaccessible” does not necessarily mean that discovery from the source
would be unreasonably burdensome or costly. Once you learn the media type or format, you
should ask additional questions to inform your analysis.

To take one common example, opposing counsel may claim that the email files of a
former employee might contain responsive information, but that when the employee left, his or
her email account was closed and the data deleted from the email server. The only place that the
employee’s email might reside is on one of several backup tapes of the email server created
shortly before the account was closed. Your opponent may argue that the former employee’s
email files are therefore “not reasonably accessible” because restoring and locating that data on
the backup tapes would be burdensome and costly.

You should recognize that this contention rests on a premise about what backup tapes are
used for, which is, generally speaking, recovery of data after a catastrophic loss, such as a natural
disaster. But what if the opposing party uses backup tapes for purposes other than disaster
recovery? What if your opponent’s system is set up in such a way that when an email file goes
missing, the company routinely uses the backup tape to restore the data? If that is the case, then
your opponent will have a much more difficult time convincing a court that the data source is not
reasonably accessible, because the company’s actual business practices make that data source
seem a lot more like “nearline” storage (CD-ROMs, external hard drives) than anything else.
Why would it be unreasonable for your opponent to restore email data from a backup tape in
response to your targeted discovery request if it regularly does the same thing for its own
business purposes?

To find out how your opponent treats backup tapes or similar media, serve discovery
requests asking for data from its help desk application system (a report, most likely) showing the
dates and details of requests for data restoration. The IT help desk at most large companies will
track requests for help, IT’s investigation, and the eventual solution. Alternatively, you should
notice a corporate representative deposition under Rule 30(b)(6) and ask for information about
requests for data restoration from users. If the corporate representative tells you that individual
users frequently asked IT for help restoring data that had been accidentally deleted and that IT
usually loaded data from backup tapes, that information may be significant in undermining your
opponent’s claim that its backup tapes are not reasonably accessible.

You should also be savvy about the attributes of backup tapes. If your opponent claims
that it will have to search thousands of tapes to locate the email file of one employee, ask how it
reached that conclusion. Even backup tapes that are not externally labeled or indexed may
include headers that can be read using a simple scan that would show the backup date and
backup software (which could indicate whether the tape contains email or some other data type).
Other simple scans may show server-level information. You should ask your opponent what
kinds of analysis it has done of the backup tapes to support its contention about the cost and
burden of finding the requested data.
 You also should discuss the use of sampling, a compromise that was specifically
endorsed in the Federal Rules of Civil Procedure revisions in 2006. The Advisory Committee
notes to Rule 26(b)(2)(B) suggest that discovery on the issue of accessibility “might take the
form of requiring the responding party to conduct a sampling of information contained on the
sources identified as not reasonably accessible . . .” Sampling may involve restoring a few
backup tapes selected from different time periods or locations both to determine whether any
responsive or truly useful information is likely to be contained on the tapes, and to inform future
discussions about cost and burden.

Simply because the data that you seek now resides on a media type that your opponent
claims is “not reasonably accessible” does not mean that it has always been so. One line of attack
in probing a claim under Rule 26(b)(2)(B) involves finding out when the ESI involved was
exiled to its current home (on, say, a backup tape).

All parties have an obligation to preserve data that they reasonably believe is likely to be
relevant to pending or anticipated litigation. Although Federal Rule of Civil Procedure 37(e)
(formerly (f)) provides a “safe harbor” for destruction of data that occurs pursuant to the
“routine, good faith operation of an electronic information system,” the Advisory Committee
notes explain that the protections of Rule 37(e) do not mean that a party under a preservation
obligation regarding that data may allow an auto-delete system to continue to run unchecked. A
party may not allow a routine system operation to destroy all access to a set of data if it is under
a duty to preserve that information.

A more complicated situation arises when the data in question was not deleted, but
simply moved (or, in IT parlance, “migrated”) from an easily accessible storage media to a less-
accessible media, after the preservation obligation arose. For example, what if immediately after
a complaint is filed in court, one of the defendant’s employees, who was at the center of the
dispute, leaves the company, and his or her email records are removed from the company’s
“active” email server? After discovering that the employee’s email is no longer on the server,
the company preserves a backup tape made of the email server immediately before the employee
left the company. In that case, there probably was no “spoliation,” as the employee’s email still
exists. But suppose that the company refuses to produce the email on the basis that it is “not
reasonably accessible.”

In factually analogous situations, courts have held that although “downgrading” of data
from active to archival or disaster-recovery storage media is not spoliation, the producing party
will be unable to shift any of the cost of restoring the archival media so that it can be searched
and the data retrieved.21 Therefore, it makes sense to ask questions about where the data that
your opponent says is “not reasonably accessible” resided in the recent past, when that data
migrated to the less-accessible media, and whether it did so as the result of a routine operation,
or as the result of a conscious and specific decision. Although it is unlikely that the answers to
questions on this topic will result in data being deemed “reasonably accessible,” it may assist you
in arguing that production should be ordered nonetheless under Rule 26(b)(2)(B)’s “good cause”
standard and that the producing party should bear the cost.

In the Aubuchon case, the data being sought—static digital images of claim files—were
deemed “not reasonably accessible” because those files were not indexed in such a way that
responsive documents could be identified without the producing party having to manually review
each document on the server. The responding party successfully argued that the cost of review
for responsiveness was an undue burden. Similarly, in other cases, requests for ESI have been
rejected or severely limited by the court where the cost of review for responsiveness (or
privilege, or some other concern) was high.

While the cost of reviewing volumes of ESI for privilege or responsiveness is repeatedly
cited as one of the worst—if not the worst—side effects of the increasing prominence of
electronic discovery, there is no need to blindly accept your opponent’s claims about the cost of
performing that review. Instead, take the following steps to explore those claims.

First, discuss with your opponent how it determined the universe of documents that
require individual review. Perhaps you have already discussed the use of search terms to allow
identification of responsive documents from data sources that the producing party has conceded
are reasonably accessible. That is the same kind of conversation you should have about sources
that purportedly are not reasonably accessible. Do not allow your opponent to argue that you
were unwilling to discuss narrowing the range of data using search terms or concepts, requiring
the manual review of every document. The defendants in Petcou v. C.H. Robinson Worldwide,
Inc. were able to use that argument to block discovery of company email with “pornographic” or
“sexual” content. The email was contained on backup tapes that had to be restored and then
reviewed. The Petcou plaintiff would not narrow the scope of the requested data beyond the very
broad, and vague, language of the request for production. Because the request would have
required defendants to review every email to or from thousands of employees over a six-year
time period, and make subjective judgments about what was “pornographic,” on top of incurring
the cost of restoring the backup tapes, the court found that the plaintiff could not establish good
cause to order the production. Simply talking to your opponent about narrowing search terms or
concepts to minimize the burden of a request may help to foreclose a contention that the cost of
review renders a source not reasonably accessible.

Second, you also should ask your opponent to give you details about the individual
components of its cost estimate and look for line items that simply do not make sense. Is the
other party proposing that a team of associates, each billing $300 per hour, perform the review?
Has it considered outsourcing review to one of the many companies that will provide contract
attorneys to perform review (at a third the cost of big-firm associates) or off-shoring the review
at an even lower cost? Is it paying for online hosted review, or is it proposing to use an in-house
review tool? What is its vendor proposing to charge for processing, hosting, or production? Is it
planning on creating TIFF files of all of the documents prior to review or only those that are
selected for production?

The reasonableness of your opponent’s projected cost will depend on the sensitivity of
the review, the size of the job, and the resources available to your opponent, all of which the
other party should be prepared to share with you and your experts. If your opponent does not
share that information with you, it likely will have to share the information with the court.26 If
you can use that information to generate cost estimates or bids from your own vendors that are
dramatically lower, it may be possible to remove the cost of review as a factor in the accessibility
analysis.
 Probing a claim that data is “not reasonably accessible” under Rule 26(b)(2)(B) involves,
first, understanding that the rule and the Advisory Committee notes provide a mechanism for
resolving such disputes that contemplates discovery on the issue, and, second, asking hard
questions of your opponent about the basis for its claim. One overriding trend in court decisions
on accessibility issues is to demand that parties disclose to each other, and thoroughly discuss
with each other, the details involved in the dispute before they come to court. Those details may
be confusing and require the assistance of consultants. However, attorneys owe it to their clients
and the courts to diligently pursue negotiated resolution of accessibility issues so that the
information that is necessary to resolve each case on its merits can come to light, without
unnecessary cost or delay. An added benefit to full disclosure is that if a motion to compel is
necessary, an exchange of ESI details will give the parties and the court the information
necessary to reach the right decision.

III. METADATA

The new Oregon state court rules provide that the requesting party may designate the
form of production. This mimics the federal rules, where there has been extensive litigation over
the issue of form of production.

Tied in with the form of production is the issue of metadata. Metadata is the
“background” information to any piece of electronic document. Metadata takes several forms.
Metadata is fragile and easily altered by mistake. But it can be critical in understanding a
document. Many parties resist the production of metadata on the basis that it is unnecessary and
not relevant in most cases.

Blanket objections to production of metadata on the basis that it is not relevant miss
the point. Metadata allows ESI to be searched, sorted, and categorized. If the metadata is
stripped out of ESI when it is produced to the requesting party, the documents are degraded
significantly. The producing party retains the ability to sort and search the ESI, for example
by creation date, author, edit date, custodian, etc., while the requesting party is left to run (at
most) manual searches across the entire data population for dates, names, etc. The result is a
significant disparity in the accessibility and utility of the ESI between the producing and
requesting parties. Federal Rule of Civil Procedure 34 is specifically intended to eliminate
this kind of disparity. As one court recently put it “The advisory committee notes for the
2006 amendments to Rule 34 provide guidance that Defendants' option to produce in a
reasonably usable form does not mean that they are free to convert electronically stored
information from the form in which it is ordinarily maintained to a different form that makes
it more difficult or burdensome for Plaintiff to use the information efficiently in the
litigation.” White v. Graceland College, 586 F. Supp. 2d 1250, 1264 (D. Kan. 2008).

Recognizing the importance of metadata to the usability of produced ESI, the leading
think-tank on ESI issues, The Sedona Conference Working Group 1, revised its Principle 12
to provide as follows:

Absent party agreement or court order specifying the form or forms of

production, production should be made in the form or forms in which the
information is ordinarily maintained or in a reasonably usable form,
 taking into account the need to produce reasonably accessible metadata
that will enable the receiving party to have the same ability to access,
search, and display the information as the producing party where
appropriate or necessary in light of the nature of the information and the
needs of the case.

The Sedona Principles-Second Edition: Best Practices Recommendations and Principles for
Addressing Electronic Document Production Principle 12 (Sedona Conference Working
Group Series 2007), http:// www. thesedona conference. org/ content/ misc Files/ TSC_
PRINCP_ 2nd _ ed_ 607. pdf (“Sedona Principles 2d” ). The Sedona Principles 2d, and in
particular Principle 12 and its comments have been relied on by many courts on the issue of
production of metadata. See, e.g., Aguilar v. Immigration & Customs Enforcement Div., 255
F.R.D. 350, 355-57 (S.D. N.Y. 2008). We have no doubt that Judge Stewart would follow
suit.

As observed by Judge Maas in Aguilar, courts have “generally ordered the production
of metadata when it is sought in the initial document request and the producing party has not
yet produced the documents in any form.” Aguilar, 255 F.RD. at 357 (collecting cases).
Indeed, Invacare’s position mirrors one of the cases discussed in Aguilar. In Hagenbuch v. v.
3B6 Sistemi Elettronici Industriali S.R.L., 2006 WL 665005 (N.D. Ill. Mar. 8, 2006), a case
decided before the 2006 revisions to Rule 34, the defendant, over the plaintiff’s protest,
converted all ESI to TIFF images without metadata as part of its production. Id. at *3. The
plaintiff moved to compel production in native format. Id. The court sided with plaintiff,
noting that the metadata “will allow [plaintiff] to piece together the chronology of events and
figure out, among other things, who received what information and when.” Id., at *3.

The relevance or admissibility of metadata is really not the issue when a party
requests production of metadata, as the commentary in the Sedona Principles 2d makes clear.
The metadata is part of the evidence in the producing party’s possession, as it is kept in the
ordinary course of business; it is therefore erroneous to conduct a separate “admissibility”
inquiry for a document’s metadata. If the document itself is discoverable, the document must
be treated as a whole, metadata included. The issue then becomes whether the producing
party may produce only part of the document, degrading its characteristics. Clearly, the rules
do not permit the producing party to degrade data in this manner.

Some may propose that running optical character recognition on images is an

adequate solution to make electronic documents searchable by the requesting party. OCR is
not a substitute for extracted metadata. First, OCR is not 100% accurate. Second, while OCR
allows a search of a document, it only allows a search of what the OCR program “sees” in
the TIFF image. If any particular piece of information is not reproduced in the TIFF image
then an OCR search will not pick it up. Third, different pieces of data will reproduce
differently in the TIFF imaging process, meaning that a search using a standard format may
not “hit” on all responsive information. Finally, and most importantly, OCR does not allow
documents to be sorted and organized by the requesting party according to metadata
characteristics, while of course the producing party retains that ability because it has access
to the data in native format.
 The recent case of In re Netbank Inc. Securities Litigation, No. 1:07-CV-2298-BBM,
2009 WL 2461036, *22 (N. D. Ga. Aug. 7, 2009), demonstrates the point. In Netbank the
plaintiff demanded production in native format in order to be able to “1) determine the
identity of the author and editors of the documents; (2) determine the creation and
modification dates of the documents; (3) determine whether the documents have attachments;
and (4) identify, sort, search or filter documents.” Id. The defendant insisted that TIFF
production with the ability to OCR the TIFFs would satisfy the plaintiff’s concerns. Id. The
court rejected defendant’s position, and ordered production in native format, principally on
the basis that the defendant had only offered “hypothetical problems” with native production.
Id. Although the court did not discuss the inadequacy of OCR specifically, implicitly the
court rejected the defendant’s contention that OCR of TIFF was an adequate solution.

So, if you have the capability of using metadata to search and review ESI, ask for it.
Most commonly, metadata is requested to be included in the “load file” produced by the other
side. Negotiations sometimes occur over which metadata fields should be included – each type
of software generates different metadata. Make sure that you insist on getting the metadata fields
that are going to be most useful to your document review.
IV. PROPORTIONALITY

The Sedona Conference Working Group 1 has recently published a very influential policy
guidance work called the Sedona Conference Commentary on Proportionality in Electronic
Discovery. The paper was intended to address a very common complaint about electronic
discovery, which is that it is vastly too expensive particularly in the context of average-size and
smaller cases, such as those that make up the bulk of the civil docket in Oregon state courts.

In order to provide guidance to courts and litigants about what limits should be placed on
electronic discovery, the Working Group developed the following principles.

The Sedona Conference® Principles of Proportionality

1. The burdens and costs of preservation of potentially relevant information should
be weighed against the potential value and uniqueness of the information when
determining the appropriate scope of preservation.
2. Discovery should generally be obtained from the most convenient, least
burdensome, and least expensive sources.
3. Undue burden, expense, or delay resulting from a party’s action or inaction should
be weighed against that party.
4. Extrinsic information and sampling may assist in the analysis of whether requested
discovery is sufficiently important to warrant the potential burden or expense of
its production.
5. Nonmonetary factors should be considered when evaluating the burdens and
benefits of discovery.
6. Technologies to reduce cost and burden should be considered in the
proportionality analysis.