The US Electronic Discovery Blog carries a story under the heading Court rejects paper production as inadequate and orders production in electronic format.
The court had suggested that “whatever is electronically available.. be made available in electronic format”. The Defendants produced paper and resisted the demand for electronically stored information (ESI) on the basis that the “extraordinary costs of production” were unduly burdensome.
The court ordered that ESI be produced from 50 custodians, including metadata, and ordered a meeting of experts without lawyers to agree a protocol for the production. The meeting seemed to have been productive at the time, but the producing party’s subsequent methodology was challenged and the court took the view that the meeting had not been as useful as had been hoped.
You can read the court’s judgment which is linked from the article if you want to see the detail. I will refrain, at this distance, from suggesting who was to blame – the court or any or all of the parties. It all looks a bit of a shambles, though, and calculated to encourage the view that eDiscovery is “unduly burdensome”. This is not usually the right conclusion – it is Discovery which is burdensome. The “e” bit is merely a method.
What was new at the second hearing which converted the court’s original polite suggestion that electronic document be disclosed electronically into an order? If there were 50 named custodians by round 2, they were presumably identifiable at round 1. The mere number of them suggests that printing off their messages and files (and then photocopying them a few times, no doubt) was a grossly inefficient and expensive means of production. I can see that doing it all over again electronically was burdensome, but why did the producing party take the paper route in the first place?
It is not uncommon for meetings between parties to be less productive than was hoped – courts can order meetings but cannot dictate the outcome. If the report is right, however, the problem was not so much the meeting itself but the disparity between what was agreed and what happened. The producing party agreed to use 50 keywords to pick out documents and instead used only two; they also applied a date-range limitation which had not been agreed. When challenged, they said that compliance with the agreement would have been too expensive and that their short-cuts were necessary to comply with the court’s time-table. Not incompetence then, just a unilateral decision to do something less onerous.
I am all for finding the least onerous route to getting a case heard quickly, cheaply and justly. The upshot of all this, however, was that the producers had three goes at production – their paper response to the court’s original suggestion, their defective non-compliance with the agreement and now, presumably, a proper go at it pursuant to the order for e-Discovery from 50 custodians.
It remains to be seen whether this third go produces any evidence worth having which did not appear earlier. Whether it does or whether it does not, much time and expense has been wasted which might have been prevented by an earlier, court-led, grip on matters at the outset.
Let me know if this seems an unfair observation.