Is Paper “Reasonably Usable” Anymore?
by Dennis Kiker, Esq., Fios Consulting, Fios, Inc.
If you look around my office, you’d have to conclude that it is. Though most of my stuff is on the computer, I still seem to wind up with lots of paper on my desk – in part because some things are just easier to read or manage in paper. (Think about those 20 minutes between the time the cabin door closes and the plane reaches 10,000 feet. What would I do without paper?) So, for me, paper is often pretty useful.
In the litigation context, however, that might not be true. In one of his most recent decisions, Judge Waxse of the District of Kansas addressed the question of whether paper is a “reasonably usable format” in which to produce ESI, at least under the circumstances of that case. White v. Graceland Coll. for Lifelong Learning, Inc., 2008 WL 3271924 (D. Kan. Aug. 7, 2008), is a wrongful termination case in which the defendant produced e-mails and attachments in paper. A paralegal converted the native documents to PDF, printed and produced them. The plaintiff moved to compel production of the records in their native format, arguing that he could not otherwise determine when particular records were created or sent, or whether the records had been modified. Judge Waxse agreed, finding that the defendant “failed to produce the emails and attachments in either the form in which they are ordinarily maintained, or in a ‘reasonably usable form,’ as required by Rule 34(b)(2)(E)(ii).”
Clearly, the e-mails and attachments in this case were not produced “in the form in which they [were] ordinarily maintained,” which is nearly always native. So, the question became whether simple paper printouts of the records were a “reasonably usable form.” Quoting the Advisory Committee’s notes to amended Rule 34, he emphasized that the producing party’s “option to produce in a reasonably usable form does not mean that a responding party is 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 the requesting party to use the information efficiently in the litigation.” Moreover, where “the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.” Ultimately, Judge Waxse held that, in this case, paper was not a “reasonably usable” substitute for the native format records.
Now, I don’t think Judge Waxse is suggesting in this opinion that paper is never a reasonably usable form of production. In fact, there are undoubtedly situations where it is the most reasonably usable format. (One example I used to deal with in products liability litigation was complex CAD drawings. The native format was useless without the CAD application, but that could cost hundreds of thousands of dollars. Similarly, a “searchable” TIFF or PDF document can be equally useless, as a complex image may have to be compressed into a size that eliminates most of the detail. The best format for production in some cases was the oversized paper printout.) Also, I don’t think that Judge Waxse is suggesting that native format will always be required. (Again, there are legitimate reasons to disfavor native production, including the inability to place confidential banners on the record without altering it, and the difficulty in detecting alterations of the record “on the fly,” as at a deposition.) What the case does highlight, however, is the importance of thinking ahead about the form of production, and selecting a production format that will meet the reasonable needs of the requesting party. This requires that a party understand its own electronically stored information as well as the issues in the case, so that critical features can be incorporated into the production format. For example, the ability to search for key words or concepts is almost certain to be required. Certain metadata fields may or may not be necessary, but, if they are, they can be made available without “going native.” Perhaps the best lesson from White is one that seems to be a refrain in an increasing number of opinions on e-discovery: “The Court notes that this discovery dispute is an example of one which … could have been altogether avoided had the parties adequately conferred at their Fed.R.Civ.P. 26(f) conference[.]” Coming to the discovery conference prepared to talk about important issues such as production format, with a reasonable proposal that will adequately meet the opposing party’s legitimate needs, may save a great deal in legal fees and avoid some unfavorable outcomes once the issue is before the court.
Dennis Kiker is dedicated to helping clients prepare for and respond to the demands of litigation. As a Director in Fios Consulting at Fios, Inc. (www.fiosinc.com), Kiker leads comprehensive consulting engagements that result in repeatable processes for efficiently and defensibly managing discovery related to complex litigation and governmental investigation. He specializes in bringing together in-house counsel, business personnel and outside counsel to develop formalized response plans that lower the costs, time and risks of discovery response. Prior to joining Fios, Kiker was a shareholder at Moran Kiker Brown PC, where he served as national discovery counsel for some of the largest manufacturing companies in the country. Kiker is a frequent speaker and author and an active participant in both the Sedona Conference and Electronic Discovery Reference Model working groups. He holds a J.D., Magna Cum Laude & Order of the Coif from the University of Michigan Law School and a B.S., in Business Administration from the University of Phoenix.
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