January 31, 2023

Volume XIII, Number 31


January 30, 2023

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Fight for Your Right to Get Usable Data in Discovery

The production of documents as large combined PDF (Portable Document Format) documents is the modern-day equivalent of a discovery data dump.  We have all experienced the receipt of several 1,000+ page PDF documents in response to discovery in a matter, with each PDF containing a combination of emails, meeting minutes, contracts, and other documents.  It is basically a large, unusable mess.  Attorneys have mechanisms through both federal and state rules at their fingertips to demand better.  

Forms of Production

Most data that attorneys seek in discovery is Electronically Stored Information (ESI).  The form of production of ESI could be native, near-native, imaged documents accompanied by load files containing searchable text and metadata (static electronic image in Tagged Image File Format (TIFF) or PDF file format, with extracted text from the document into a text file, and selected metadata and other non-apparent data into one or more separate load files), or simply imaged documents.  Inherent in any of those forms of production is that the documents are produced as ordinarily maintained.  A large PDF, combining a variety of documents, does not meet the definition.

Remember that, as the requesting party in both state and federal court in Pennsylvania, you can specify the form in which the ESI is to be produced. 

Under Federal Rule of Civil Procedure 34, a party is required to produce documents (1) “as they are kept in the usual course of business or must label them to correspond to the categories in the requests,” Fed. R. Civ. P. 34(b)(2)(E)(i), and (2) if a request does not specify a form of producing ESI, “in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” Fed. R. Civ. P. 34(b)(2)(E)(ii)

Under the Pennsylvania State Rule, a party requesting electronically stored information may specify the format in which it is to be produced and a responding party or person not a party may object. If no format is specified by the requesting party, electronically stored information may be produced in the form in which it is ordinarily maintained or in a reasonably usable form. Pa.R.C.P. No. 4009.1(b).

So start early by requesting the production in your desired format.  And continue to fight for that production.  

The Problem with Large PDF Productions

The production of multiple documents together in one PDF removes any ability to determine relationship, order, and sequencing of any of the documents contained within the PDF.  Loading a large PDF into database and then searching for information is cumbersome.  For example, if you locate one email at page 502 within a 1000+ page PDF, you can’t tag or utilize that document as a standalone document without first unitizing the PDF (breaking it down into its component documents).  That takes time and expense.  And you need instructions to unitize.  Those instructions come in the form of a load file, which is essentially the instruction manual for your data and provides information about which documents go together and other document organization. Further, documents produced in one large PDF have no useable metadata which would pertain to the underlying documents contained within the PDF. While all metadata isn’t always required for a case, as metadata may be critically relevant to your case or completely irrelevant, without at least basic system metadata, you lose all ability to utilize metadata in the sorting and organization of the discovery documents within your database.  See Sedona Conference Journal, Comment 12.a.on metadata. 

Most Importantly it Violates the Federal Rules!

A single large PDF combining multiple separate documents is not the way documents are maintained in the ordinary course of business.  A party who opts to produce documents as maintained in the usual course of business must actually produce the documents that way. A production of e-mails grouped together as a large document violates this obligation. And the courts are noticing:

Johnson v. Italian Shoemakers, Inc., 2018 WL 5266853, at *2 (W.D.N.C. Oct. 23, 2018) (awarding sanctions where party continued to produce e-mails as PDFs, “which is not how emails are maintained in the regular course of business”);

Spilker v. Medtronic, Inc., 2015 WL 1643258, at *5 (E.D.N.C. April 13, 2015) (party satisfied the requirements by providing “fully searchable documents, sortable by metadata fields, in a folder structure organized by custodian”); and

Abbott Labs. v. Adelphia Supply USA, 2019 WL 3281324, at *2 (E.D.N.Y. May 2, 2019) (the documents in question were scanned all together and produced as a single 1941-page PDF file. While the production of documents in one large PDF file was only one of the factors that Magistrate Judge Lois Bloom considered in recommending such harsh sanctions, attorneys should heed the message.) 

©2023 Strassburger McKenna Gutnick & GefskyNational Law Review, Volume XI, Number 323

About this Author

Gretchen E. Moore Litigation Attorney Strassburger McKenna

Gretchen E. Moore is a shareholder and Vice President at Strassburger McKenna Gutnick & Gefsky. She has been with the firm since 2004 and also serves as co-chair of the firm’s Litigation Practice Group. Ms. Moore’s practice focuses on commercial and civil litigation and municipal law with an emphasis on contracts, construction, fraud and breach of fiduciary duty.

Ms. Moore practices in state and federal courts, before administrative boards and in arbitration and mediation proceedings. She represents municipalities in land use, zoning,...