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Beware of Too General Production Agreements in E-discovery


Many attorneys approach handling electronic discovery in exactly the same way they have handled paper discovery in the past. The Rules of Civil Procedure in Florida apply the same to paper and digital as far as discoverability and other issues, the mechanics of production have changed and lawyers must pay attention when striking agreements .

The case Amdocs (Israel) Limited v. Openet Telecom, Inc., No. 1:10cv910 (E.D.Va 2013), the District Court for the Eastern District of Virginia faced a motion to tax costs in this patent infringement case. A part of the motion to tax costs involved $67,512.71 in “production, metadata extraction and file conversion.

At the onset of discovery, the parties agreed on the following production plan:

“The parties agree that all documents (whether or not they are stored electronically) shall be produced electronically (e.g . on compact discs , DVDs , or hard drives) in imaged files (e . g . TIFFs or PDFs) , with load files in mutually agreeable formats , compatible with the receiving party’ s document management system . Documents need not be produced in native format.”

In its Motion to Tax Costs, OPenet made claim for processing approximately a million documents and that the ultimate costs were to process those documents under the agreements of the parties. Although the amount was not specified, within the over $67,000 in charges, Openet claimed to have included costs for “metadata extraction”.

Extraction and elimination of some metadata is necessary when files will be produced in native format (in a format the same as the software producing the “original”) and where parties want email header information produced it is possible that metadata extraction may be of value or, in fact, even compelled.

Based on the court’s memorandum, order and agreements between the parties, no native format documents were to be produced. Rather, the agreement was for conversion of the digital documents into TIFF (Tagged Image Format)or PDF (portable document format)with load files mutually agreed to and compatible with each party’s document management system. So, the digital documents would be converted to TIFF or PDF and the hard copy documents would be scanned to TIFF or PDF. Compatible load files would then be created and the images, together with the load files would be produced on a media that made sense (DVD, external drive, etc).  Apparently the parties had no agreement to produce OCR (optical character recognition) files with the documents do they would be text searchable.

The court conducts an analysis of the costs correctly chargeable and those not recoverable. The approach taken by most courts is costs functionally equivalent to making copies of paper records are chargeable costs. Metadata removal (absent an order or agreement, is not one of the recoverable costs. The court found in favor of Openet on its costs, except the removal of metadata and the court reduced the claimed amount by an arbitrary one third; reducing this aspect of the costs to $45,008.47.

Openet’s claim for metadata removal is interesting since no metadata removal would have been necessary based upon the methods described for production; since there was no risk of producing metadata based on the criteria agreed upon.

Based on the published production agreement, could the parties have done it better?

Yes. Attention to detail is important when it comes to today’s e-discovery management and production. It has truly become an environment in which nothing should be assumed. I would have suggested something along the following guidelines:

  1.       The parties agree that the productions of native documents are, at this time, not necessary; with the exception of the narrowly described items below.
  2.       All “documents”, whether digitally kept or in hard copy, will be produced in PDF (portable document format) and will be accompanied by OCR optical character recognition) files.
  3.        E-mails will be converted to PDF formats and produced with all the header data included and following the email to which the header data applies in order of        production.
  4.        Spreadsheets will be produced in PDF and in native formats. The formulas, if any, in the spreadsheets shall be left remaining in the native production.
  5.        Power Point presentations and similar productions should be made in PDF and native format.
  6.        Color photographs, illustrations and drawings will be produced in JPEG (Joint Photographic Experts Group) format.
  7.        Load files compatible with the Summation document management system will be provided with the production.
  8.        To the extent the producing party intends to code the documents with objective coding, the objective coding should be included in the load files provided.  

When fashioning discovery and agreements for production it is wise for attorneys to consult experts in the various digital fields to ensure complete and useable production.


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