eDiscovery Daily Blog

• March 12, 2013

In Branhaven, LLC v. Beeftek, Inc., 2013 U.S. Dist., (D. Md. Jan. 4, 2013), Maryland Magistrate Judge Susan K. Gauvey sanctioned plaintiff’s attorneys for wrongfully certifying the completeness of their eDiscovery production and also ruled that defendants “demonstrated that without Bates stamping and .tiff format”, the plaintiff’s production “was not reasonably usable and therefore was insufficient under Rule 34”.

In this trademark infringement suit, the defendants alleged numerous instances of “discovery abuses intended to harass defendants, cause unnecessary delay, and needlessly increase the cost of litigation” by the plaintiff, resulting in $51,122 in legal fees and expenses related to the plaintiff’s “document dump” of 112,000 pages of electronically stored information (ESI).  The Plaintiffs produced their ESI in PDF format, which was challenged by the defendants, because the production was untimely and not in TIFF format with Bates Numbers on every page.

While noting that the court did not “want to micromanage discovery between counsel”, Judge Gauvey stated however that “neither does this judge want to endorse this ‘hands off’ approach in working with clients to meet discovery obligations and this casual and even reckless attitude of plaintiff’s counsel to opposing party’s right to timely and orderly discovery.”

With regard to the PDF production, Judge Gauvey referred to the plaintiff’s contention that “the Protocol for Discovery of Electronically Stored Information (Local Rules of District of Maryland) which states that TIFF is the preferred format is only advisory” as a “weak defense”.

Judge Gauvey also noted “as defendants point out, Fed. R. Civ. P. 34(b)(2)(E)(ii) provides two options regarding the form in which a party may produce documents and plaintiff did not satisfy either. The July 20 production was not in a form ‘in which it is ordinarily maintained’ or in ‘a reasonably usable form’…The Advisory Committee Notes to Rule 34 warn that: ‘[a] party that responds to a discovery request by simply producing electronically stored information in a form of its choice, without identifying that form in advance of the production in the response required by Rule 34(b) runs the risk that the requesting party can show that the produced form is not reasonably usable’…That is precisely what happened here…Defendant was blindsided by the volume of the documents (since the prior productions consisted of 388 pages). Moreover, defendants had every reason to think that the documents would be completely Bates-stamped, as prior productions were and further defendants had no reason to think that this production would be so incredibly voluminous, as to require special arrangements and explicit agreement.”

Judge Gauvey ordered the defendant to submit a bill of costs by January 15 for the technical fees they incurred to process the flawed production (which they did, for $2,200). The plaintiff also agreed to pay an undisclosed sum in attorneys’ fees related to the sanctions motion.

On the surface, the ruling that “without Bates stamping and .tiff format, the data was not reasonably usable and therefore was insufficient under Rule 34” appears to take a step backward with regard to production format expectations.  However, the ruling also notes that the production “was not in a form ‘in which it is ordinarily maintained’” and the plaintiff’s previous PDF productions (apparently Bates stamped) and the defendant’s productions in PDF format (also presumably Bates stamped) were allowed.  Perhaps, if the plaintiff had produced the files in native format instead of a poorly executed PDF format production, the ruling would have been different?

So, what do you think?  Does this ruling appear to be a setback for native productions?  Or merely reflection of a poorly executed PDF format production?  Please share any comments you might have or if you’d like to know more about a particular topic.

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