JOHN M. FACCIOLA, U.S. Magistrate Judge for the District Court in Washington D.C., wrote yet another memorable e-discovery opinion: Covad Communications Co. v. Revonet, Inc., 2008 WL 5377698 (D.D.C. Dec. 24, 2008). The opinion showcased the archaic pre-digital Requests for Production of documents still used by many, perhaps most attorneys in America. The use of such Twentieth Century practices in the Twenty-First Century, along with the failure of counsel to communicate and cooperate as required by Rule 26(f), are the main reasons Judge Facciola had to work late the night before Christmas to resolve this discovery dispute.
Here plaintiff’s counsel used a form Request for Production (“RFP”) that was obviously designed for paper production, and then complained when the responding party produced in paper format the information responsive to the RFP, which, of course, was email. The plaintiff moved to compel the production of the email again, but this time in its native format. The defendant refused to produce for a second time the 35,000 pages of emails. Defendant did offer to produce the emails electronically, but in TIFF format, and only if the plaintiff would pay the fees the defendant would have to incur to delete and electronically redact privileged and irrelevant emails from the TIFF production. Plaintiff refused, contending that native production was required under the rules. Thus we have the dispute presented to Judge Facciola for resolution on the night before Christmas. (It is not easy being a judge!)
The Terms of the Antique RFP
The first thing to do to try to resolve a discovery dispute is look at the discovery request itself. The RFP in question here was served on April 27, 2007. It instructed the defendant to:
[p]roduce all documents in [its] possession, custody or control, as they are kept in the ordinary course of business, including with all staples and clips attached and with all associated file folders, dividers and labels.
Nice to see such a detailed instruction on how to arrange the staples and paper clips in a production. Yes, this was an effective form in its day, which was at least 40 years ago! This same instruction could have been used (and probably was) in the Nineteenth Century, referring as it does to the paper clip, invented in 1867, and the staple fastener, invented in 1877. The only thing missing was an instruction for Bates stamping, patented in 1893, which you will still often find in many RFPs.
Still, it gets worse. The RFP goes on the define “documents” as:
[A]ny tangible thing upon which any expression, communication, representation or data has been recorded by any means including, but not limited to, handwriting, printing, photostating, photographing, on a computer, instant messages, magnetic impulse, or mechanical or electronic recording and any non-identical copies (whether different from the original because of notes made on such copies, because of indications that said copies were sent to different individuals than were the originals, or because of any other reason), including but not limited to working papers, preliminary, intermediate or final drafts, correspondence, memoranda, charts, notes, records of any sort of meetings, invoices, financial statements, financial calculations, diaries, reports of telephone or other oral conversations, desk calendars, appointment books, audio or video tape recordings, microfilm, microfiche, computer tape, computer disk, computer printout, computer card, and all other writings and recordings of every kind that are in your actual or constructive possession, custody or control.
Those of us who have been practicing law a long time instantly recognize this as an old form RFP, and I mean really old. Most of it was obviously prepared in the 1970s before the advent of personal computers, but spiced up by someone later who added two words, “instant messages,” as an example of a “tangible thing.” So much for modernization! The RFP does not, in anyway, mention electronically stored information (ESI), the desired form of the production of ESI, for example, native format; nor does it breathe a word about metadata. In fact, even though someone added “instant messages” to the paper laundry list, it nowhere mentions emails. Instead, it requests “magnetic impulses,” “computer tape,” and “computer cards.” That is the kind of thing you might use for giant, old, IBM computers in the 1950s. Adding these words to the “document” definition made you look quite modern in the middle of the last century, but are just short of absurd today.
If you think that this is a rare exception of big firm blundering, you would be wrong. I wager that every AmLaw 100 firm has some trial lawyers who still use paper RFPs that are not too different from this one. Trial lawyers are an independent bunch; getting them to follow law firm best practice suggestions is, as the saying goes, “like herding cats.” It seems like the last thing that they and their obedient associates will part with are their old forms. No, instead they will spice them up from time to time by throwing in newfangled terms like “instant messages” and delude themselves into thinking that is good enough.
Although Judge Facciola points out the archaic language used, neither he, nor I, mean to cast stones on any particular law firm. In fact, the law firms in this case are very good by anyone’s standards, especially the plaintiff’s firms who used this form. No, we only take to task the individual lawyers in every firm who stubbornly cling to a contentious paper world that has long since passed them by. Their refusal to change and conduct discovery in a proper manner has consequences, none of them good, as Covad Communications Co. v. Revonet, Inc. demonstrates.
Judge Facciola’s Reaction to Ancient Boilerplate
Getting back to Judge Facciola’s Christmas eve labors, here is how he explains the predicament the parties presented to him for resolution:
Thus, I am supposed to determine by examining ancient boilerplate – designed for discovery in a paper universe – such nice questions as whether an e-mail, existing in a computer’s memory is a “tangible thing” and how e-mails are “maintained in the ordinary course of business.” While I have considered a similar provision in depth once before, FN1 See D’Onofrio v. SFX Sports Group, Inc., 247 F.R.D. 43, 47 (D.D.C.2008), I see no need to repeat that metaphysical exercise here because it is a waste of judicial resources to continue to split hairs on an issue that should disappear when lawyers start abiding by their obligations under the amended Federal Rules and talk to each other about the form of production. I would much prefer to carry out my duties in accordance with Rule 1, which
provides that the rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed.R.Civ.P. 1.
The New Rules
Rule 34 of the Federal Rules of Civil Procedure states that: (1) the requesting party may designate the form in which the ESI should be produced; and, (2) if the request does not so specify, then it should be produced in a form in which it is ordinarily maintained, or in a reasonably usable form. The form in which ESI is “ordinarily maintained” is its native format. So when an RFP does not specify a form of production, you must produce in native or in a “reasonably usable form.” This typically means an electronic form that is indexed and so can be searched by computer.
The plaintiff thus argued that the new rules require electronic production of email, either in native format or searchable image format, such as the TIFF offered by defendant. The defendant argued that the RFP asked for paper, and that is what they got. I assume they also argued that Rule 34 states that “a party need not produce the same electronically stored information in more than one form.” Here is how Judge Facciola deals with this quagmire of the parties own making:
More importantly, I do not need to parse words because no one is pretending that Revonet prints all of its e-mails or converts them to TIFF files on a daily basis no matter how ephemeral, meaningless or trivial their content.FN2 Therefore, though Covad’s instruction is hopelessly imprecise and Revonet could colorably argue that it should be interpreted to include several different formats, no reasonable person can honestly believe that hard copy is one of them. For hard copy to be an acceptable format, one would have to believe that Revonet, in its day to day operations, keeps all of its electronic communications on paper. There is no evidence in the record that Revonet operates in this manner, and no suggestion that such a practice would be anything but incredible. Therefore, even though I can’t say I know what Covad has asked for, I can say what they have not asked for, and that is what they got.
Footnote two in the above quote is worth reading in full, as it is a astonishing estimate of email volume that is far higher than previous estimates I have seen:
FN2. Note the following remarkable estimate:
Statistics, extrapolations and counting by Radicati Group from August 2008 estimate the number of emails sent per day (in 2008) to be around 210 billion. 183 billion messages per day means more than 2 million emails are sent every second. About 70% to 72% of them might be spam and viruses. The genuine emails are sent by around 1.3 billion email users.
Judge Facciola then focuses on the bottom line, how to best resolve this dispute in a situation where there is plenty of blame to go around. As usual, he does so with style and colorful language, which is bound to have us all remembering this decision as the “stop sign crash” case.
A much more fruitful use of the broad powers I unquestionably have to supervise discovery is to focus on the quickest and cheapest solution to the problem presented. I will assume that the e-mails at issue exist in what I have called their native format and can be copied onto a CD with a couple of keystrokes. Obviously, printing them or converting them to TIFF files probably (and ironically) costs more so Revonet is hard pressed to claim that producing them now in their native format is unfairly burdensome.
There is one burden, however: the cost of deleting privileged information from the CD to be produced. At one point, Revonet agreed to produce the e-mails in TIFF for-mat but insisted that Covad pay for a paralegal to “manually delete the non-responsive and privileged TIFF’s that have already been redacted from the paper document production.”Exhibit D to Pls. Mot. at 6. Revonet estimated that this would take the paralegal 5 to 10 hours at a rate of $178.50 for a maximum cost of $1,785.00. Id.
Since both parties went through the same stop sign, it appears to me that they both should pay for the crash. I will require them to share the cost of the paralegal removing the privileged e-mails, as I have described it, to a cost of no greater than $4,000, i.e., $2,000 each. I expect Revonet to keep a careful record of the time spent and to alert me if there is any risk that the cost will exceed $4,000. At that point (which I hope will not be reached) I will ask Revonet to estimate what it will cost to finish the job and seek the views of counsel as how to cover it.
Judge Facciola then concludes by making the moral of this Christmas eve story very clear:
Finally, I would hope that my decision will have a didactic purpose. This whole controversy could have been eliminated had Covad asked for the data in native format in the first place or had Revonet asked Covad in what format it wanted the data before it presumed that it was not native. Two thousand dollars is not a bad price for the lesson that the courts have reached the limits of their patience with having to resolve electronic discovery controversies that are expensive, time consuming and so easily avoided by the lawyers’ conferring with each other on such a fundamental question as the format of their productions of electronically stored information.
Judge Peck Orders All Lawyers in NY to Follow the Rules when Objecting to Requests for Production, or Else …
In early 2017 Judge Peck issued a second wake-up call type of opinion in Fischer v. Forrest, _ F. Supp. 3rd _, 2017 WL 773694 (S.D.N.Y. Feb. 28, 2017). It shows that lawyers are still having problems with Rule 34.
Judge Peck’s first wake-up call in 2009 had to do with the basics of keyword search – William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Co., 256 F.R.D. 134 (S.D.N.Y. 2009), which is still one of my favorite all time e-discovery opinions. His second wake-up call has to do with the basics of Rule 34, specifically subsections (b)(2)(B) and (b)(2)(C):
It is time, once again, to issue a discovery wake-up call to the Bar in this District:1/ the Federal Rules of Civil Procedure were amended effective December 1, 2015, and one change that affects the daily work of every litigator is to Rule 34. Specifically (and I use that term advisedly), responses to discovery requests must:
* State grounds for objections with specificity;
* An objection must state whether any responsive materials are being withheld on the basis of that objection; and
* Specify the time for production and, if a rolling production, when production will begin and when it will be concluded.
Most lawyers who have not changed their “form file” violate one or more (and often all three) of these changes.
Judge Peck is right about that. But there are so many technical rules that lawyers do not exactly follow. Nothing new here. Boring. Right? Wrong. Why. Because Judge Peck has added teeth to his observation.
It is well known that most lawyers will continue to use their old forms unless they are pried out of their dying hands. Mere changes in the rules and resulting technical violations are not about to interfere with the basic lethargy inherent in legal practice. The law changes so slowly, even big money saving improvements like predictive coding are met with mere lip service praise followed by general neglect (hey, it requires learning and change).
So how to get lawyers attention? Judge Peck knows a way, it involves threats. Here is his conclusion in Fischer.
The December 1, 2015 amendments to the Federal Rules of Civil Procedure are now
15 months old. It is time for all counsel to learn the now-current Rules and update their “form” files. From now on in cases before this Court, any discovery response that does not comply with Rule 34’s requirement to state objections with specificity (and to clearly indicate whether responsive material is being withheld on the basis of objection) will be deemed a waiver of all objections (except as to privilege).
Yes. Judge Peck used the “w” word that lawyers all fear – WAIVER. And waiver of all objections no less. Lawyers love their objections and do not want anyone taking them away from them. They may even follow the rules to protect them. At least, that is Judge Peck’s thinking.
What does that rule say that so many are thoughtlessly violating. What has made dear Judge Peck so hot under the collar? You can read his opinion to get the answer, and I strongly recommend that you do, but here are the two subsections of Rule 34(b)(2) that no one seems to be following. You might want to read them through carefully a few times.
Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes
(2) Responses and Objections.
(B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.
(C) Objections. An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.
As to what that means you have no higher authority than the official Comments of the Rules Committee itself, which Judge Peck also quotes in full and adds some underlines for emphasis:
Rule 34(b)(2)(B) is amended to require that objections to Rule 34 requests be stated with specificity. This provision adopts the language of Rule 33(b)(4), eliminating any doubt that less specific objections might be suitable under Rule 34. The specificity of the objection ties to the new provision in Rule 34(b)(2)(C) directing that an objection must state whether any responsive materials are being withheld on the basis of that objection. An objection may state that a request is overbroad, but if the objection recognizes that some part of the request is appropriate the objection should state the scope that is not overbroad. Examples would be a statement that the responding party will limit the search to documents or electronically stored information created within a given period of time prior to the events in suit, or to specified sources. When there is such an objection, the statement of what has been withheld can properly identify as matters “withheld” anything beyond the scope of the search specified in the objection.
Rule 34(b)(2)(B) is further amended to reflect the common practice of producing copies of documents or electronically stored information rather than simply permitting inspection. The response to the request must state that copies will be produced. The production must be completed either by the time for inspection specified in the request or by another reasonable time specifically identified in the response. When it is necessary to make the production in stages the response should specify the beginning and end dates of the production.
Rule 34(b)(2)(C) is amended to provide that an objection to a Rule 34 request must state whether anything is being withheld on the basis of the objection. This amendment should end the confusion that frequently arises when a producing party states several objections and still produces information, leaving the requesting party uncertain whether any relevant and responsive information has been withheld on the basis of the objections. The producing party does not need to provide a detailed description or log of all documents withheld, but does need to alert other parties to the fact that documents have been withheld and thereby facilitate an informed discussion of the objection. An objection that states the limits that have controlled the search for responsive and relevant materials qualifies as a statement that the materials have been “withheld.”
2015 Adv. Comm. Notes to Rule 34 (emphasis added by Judge Peck).
Let us count the ways defendants have violated the Rules:
First, incorporating all of the General Objections into each response violates Rule 34(b)(2)(B)’s specificity requirement as well as Rule 34(b)(2)(C)’s requirement to indicate whether any responsive materials are withheld on the basis of an objection. General objections should rarely be used after December 1, 2015 unless each such objection applies to each document request (e.g., objecting to produce privileged material).
Second, General Objection I objected on the basis of non-relevance to the “subject matter of this litigation.” (See page 3 above.) The December 1, 2015 amendment to Rule 26(b)(1) limits discovery to material “relevant to any party’s claim or defense . . . .” Discovery about “subject matter” no longer is permitted. General Objection I also objects that the discovery is not “likely to lead to the discovery of relevant, admissible evidence.” The 2015 amendments deleted that language from Rule 26(b)(1), and lawyers need to remove it from their jargon. See In re Bard IVC Filters Prod. Liab. Litig., 317 F.R.D. 562, 564 (D. Ariz. 2016) (Campbell, D.J.) (“The 2015 amendments thus eliminated the ‘reasonably calculated’ phrase as a definition for the scope of permissible discovery. Despite this clear change, many courts [and lawyers] continue to use the phrase. Old habits die hard. . . . The test going forward is whether evidence is ‘relevant to any party’s claim or defense,’ not whether it is ‘reasonably calculated to lead to admissible evidence.”‘).
Third, the responses to requests 1-2 stating that the requests are “overly broad and unduly burdensome” is meaningless boilerplate. Why is it burdensome? How is it overly broad? This language tells the Court nothing. Indeed, even before the December 1, 2015 rules amendments, judicial decisions criticized such boilerplate objections. See, e.g., Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 358 (D. Md. 2008) (Grimm, M.J.) (“[B]oilierplate objections that a request for discovery is ‘over[broad] and unduly burdensome, and not reasonably calculated to lead to the discovery of material admissible in evidence,’ persist despite a litany of decisions from courts, including this one, that such objections are improper unless based on particularized facts.” (record cite omitted)).
Finally, the responses do not indicate when documents and ESI that defendants are producing will be produced.
Liguria Foods, Inc. v. Griffith Laboratories, Inc.
Following in the footsteps of SDNY Judge Andrew Peck’s prior reported “wake-up” call case (Fischer v. Forrest), District Court Judge Mark Bennett has bench-slapped all counsel in Liguria Foods, Inc. v. Griffith Laboratories, Inc., No. C 14-3041, 3/13/17). Found at Google Scholar at: https://scholar.google.com/scholar_case?case=13539597862614970677&hl=en&as_sdt=40006. The take aways from the Liguria Foods opinion are:
“Obstructionist discovery responses” in civil cases are a “menacing scourge” that must be met in the future with “substantial sanctions”
Attorneys are addicted to “repetitive discovery objections” that are “devoid of individualized factual analysis”
“Judges need to push back, get our judicial heads out of the sand, stop turning a blind eye to the ‘boilerplate’ discovery culture and do our part to solve this cultural discovery ‘boilerplate’ plague.”
Only by “imposing increasingly severe sanctions” will judges begin to change the culture of discovery abuse, he said.
Instead of sanctions, the court accepted the “sincere representations” from the lead attorneys that they will be “ambassadors for changing the ‘boilerplate’ discovery objection culture” in both of their law firms.
“NO MORE WARNINGS. IN THE FUTURE, USING ‘BOILERPLATE’ OBJECTIONS TO DISCOVERY IN ANY CASE BEFORE ME PLACES COUNSEL AND THEIR CLIENTS AT RISK FOR SUBSTANTIAL SANCTIONS,” the court said in ALL CAPS as his closing sentence.
TheLiguria Foods opinion is full of colorful language. Bottom line – stop using form objections, especially if they don’t conform to new rules (or any rules). Instead, become an ambassador for changing the ‘boilerplate’ discovery objection culture for your firm.
Judge Bennett’s analysis points to many form objections, not just those saying “overbroad” that were discussed by Judge Peck under Rule 34 in Fischer. You may find many of them to be familiar (ahem). Here’s a few general boilerplate objections that look familiar to me:
Objection “to the extent they seek to impose obligations on it beyond those imposed by the Federal Rules of Civil Procedure or any other applicable rules or laws.”
Objection “to the extent they call for documents protected by the attorney-client privilege, the work product rule, or any other applicable privilege.”
Objection “to the extent they request the production of documents that are not relevant, are not reasonably calculated to lead to the discovery of admissible evidence or are not within their possession, custody and control.”
Objection “insofar as they seek information that is confidential or proprietary.”
“subject to [and without waiving] its general and specific objections”
Objection “”as the term(s) [X and Y] are not defined.”
Here are a few quotes to give you the flavor of how many judges feel about form objections:
This case squarely presents the issue of why excellent, thoughtful, highly professional, and exceptionally civil and courteous lawyers are addicted to “boilerplate” discovery objections. More importantly, why does this widespread addiction continue to plague the litigation industry when counsel were unable to cite a single reported or non-reported judicial decision or rule of civil procedure from any jurisdiction in the United States, state or federal, that authorizes, condones, or approves of this practice? What should judges and lawyers do to substantially reduce or, more hopefully and optimistically, eliminate this menacing scourge on the legal profession? Perhaps surprisingly to some, I place more blame for the addiction, and more promise for a cure, on the judiciary than on the bar.
Indeed, obstructionist discovery practice is a firmly entrenched “culture” in some parts of the country, notwithstanding that it involves practices that are contrary to the rulings of every federal and state court to address them. As I remarked at an earlier hearing in this matter, “So what is it going to take to get . . . law firms to change and practice according to the rules and the cases interpreting the rules? What’s it going to take?”
On January 27, 2017, I entered an Order To Show Cause Why Counsel For Both Parties Should Not Be Sanctioned For Discovery Abuses And Directions For Further Briefing. In the Order To Show Cause, I directed that every attorney for the parties who signed a response to interrogatories or a response to a request for documents in this case, with the exception of local counsel, appear and show cause, at a hearing previously scheduled for March 7, 2017, why he should not be sanctioned for discovery abuses.
Judge Bennett held a long evidentiary hearing before issuing this Order where he questioned many attorneys for both sides under oath. Amazing huh? This lead to the following comments in the Opinion:
As to the question of why counsel for both sides had resorted to “boilerplate” objections, counsel admitted that it had a lot to do with the way they were trained, the kinds of responses that they had received from opposing parties, and the “culture” that routinely involved the use of such “standardized” responses. Indeed, one of the attorneys indicated that some clients—although not the clients in this case—expect such responses to be made on their behalf. I believe that one of the attorneys hit the nail squarely on the head when he asserted that such responses arise, at least in part, out of “lawyer paranoia” not to waive inadvertently any objections that might protect the parties they represent. Even so, counsel for both parties admitted that they now understood that such “boilerplate” objections do not, in fact, preserve any objections. Counsel also agreed that part of the problem was a fear of “unilateral disarmament.” This is where neither party’s attorneys wanted to eschew the standard, but impermissible, “boilerplate” practices that they had all come to use because they knew that the other side would engage in “boilerplate” objections. Thus, many lawyers have become fearful to comply with federal discovery rules because their experience teaches them that the other side would abuse the rules. Complying with the discovery rules might place them at a competitive disadvantage.
Bottom line: stop form objections, especially general objections, or risk the wrath of your local judge.
SUPPLEMENTAL READING: Carefully study these three opinions. Do you see any progress being made since the 2008 Convad pinion?
ADDITIONAL READING: Find one or more articles written on the 2015 revised Rule 34 and e-Discovery.
EXERCISE: Search for a request for production that includes ESI and seems pretty good to you.
Students are invited to leave a public comment below. Insights that might help other students are especially welcome. Let’s collaborate!
Ralph is a Partner in LOSEY PLLC. The law firm was founded by his son and daughter-in-law, Adam and Cat Losey, and can be found at Losey.law.
Ralph has over forty years of experience representing companies and individuals in information technology issues, including contracts and business advice. Ralph also has substantial experience in civil litigation, including commercial, intellectual property, employment and insurance. His litigation sub-specialty in these areas is fraud, primarily defense oriented, but he also initiated for the plaintiff, on behalf of the United States, several government fraud Qui Tam cases. One resulted in the largest False Claims Act settlement in history. For the past ten years Ralph has focused on a new area of the law that he has become passionate about, artificial intelligence, especially its use to find evidence and its ethical implications.