Ediscovery document productions are often sent as a single, clunky PDF. Here’s why you should avoid sending – or receiving – this “document dump.”
Document productions in ediscovery shouldn’t be difficult – opposing counsel tells you what they need and you send it. Who wants to confer about file formats and metadata fields? Just send the documents so someone can start looking at them. But here’s the pertinent question: Would you rather receive a set of functional, usable files? Or a data dump that’s impractical, bulky, and difficult to use?
The answer to this question is clear, and you should take steps to ensure you produce and receive data in a functional format. Under the Federal Rules of Civil Procedure and most analogous State Rules, you are entitled to dictate exactly how you will receive electronically stored information (ESI). FRCP 34 states you can “specify the form or forms in which electronically stored information is to be produced.” This is where an ESI protocol becomes extremely helpful.
What if you don’t specify the form of production for ESI? You get what the other side chooses to give you, which often means they’re backing up a dump truck to the front door of your office and emptying it out. In the past, this meant reams of paper and stacks of Bankers boxes without much organization that you had to painstakingly dig through to find relevant documents.
Today’s modern equivalent of a “data dump” is a single PDF file that contains hundreds or thousands of pages with no indication of how many documents are represented or where those documents begin and end. These productions offer limited search functionality and no method to sort or filter the documents.
A good argument could even be made that these productions amount to discovery abuse, so of course, you don’t want to deliver productions in this form. You should also request data in a specified format in your ESI protocols to avoid receiving this monstrosity. If you’re not convinced, here are 3 reasons why a single PDF production is unwieldy, unworkable, and untenable.
1. A Big File with Big Problems
Delivering an ediscovery document production in a single PDF file means you’re providing one large, bulky, cumbersome file that is awkward to store and transport. When you convert electronic files to PDF form, such as emails, presentations, or spreadsheets, they often grow in size from the original file format. It may take longer for you to open a large PDF file in the chosen PDF software, and searches can be frustratingly slow across thousands of pages.
Speaking of searching, there’s no way to limit your search to a subset of the documents in a large PDF – you have to run searches against the entire PDF file every single time. That takes time and forces you to parse through all the junk results in every search.
And even if you wanted to extract a single document from a large PDF file, there’s no consistent way to detect where individual documents begin and end. You have to manually look through every page one by one by one… and hope you guess correctly. The producing party knows exactly how the documents are separated because they have the original files. Sending a single PDF production shows that they’ve chosen to make it difficult for the other side by combining them into one big pile. Manual extraction is the only option for tagging or coding certain documents as “hot” or “important” – there’s no way to associate tags with individual documents in a large PDF.
Emails and spreadsheets don’t have “pages,” but when you convert those files to PDF you are forcing them to be paginated. This may sound trivial, but most electronic files (even Microsoft Word documents) don’t have “pages” until someone hits the print button. Until then, emails, documents and spreadsheets happily exist in their digital environment with all the metadata and capabilities they were designed to have. (Raise your hand if you’ve gone through the nightmare of trying to print an Excel spreadsheet – they’re not meant to be printed!) Exporting a single PDF production means that spreadsheets and other files are likely to be distorted by the pagination process.
2. Removing Helpful Metadata
When electronic files are converted to PDF format, it will remove important metadata that is helpful for searching, sorting, and filtering documents. For example, if you’re looking at your email in Gmail or Outlook, you can easily sort your messages chronologically, quickly see if an email was replied to or what conversation it belongs to, and move messages into sub-folders or apply labels. Attachments are also directly associated with their “parent” message.
When emails are converted to a single PDF and the critical metadata is stripped out, you lose all ability to sort or filter messages by their date, sender, or folder. None of that is possible with a large PDF file full of converted emails. You can’t narrow your search to emails from a certain year or month, nor can you filter out messages from a specific sender sent to a specific recipient. Even more, converting spreadsheets or documents to a PDF could modify metadata (such as file creation dates), and it will typically strip out comments, hidden text, or even formulas in spreadsheet cells that could be important to the case.
3. It’s Not Reasonably Usable
We mentioned earlier that under the Federal Rules of Civil Procedure and most analogous State Rules, a party “may specify the form or forms in which electronically stored information is to be produced” when sending a production request to the other party. If a production request does NOT specify a form for producing electronically stored information, FRCP 34(b)(2)(E)(ii) then defaults to requiring a party to “produce [electronically stored information] in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.”
No company keeps their email in a single large PDF file. If email is produced in that format, the producing party has deliberately ignored and violated the clearly stated Rules of Civil Procedure. The other party is not receiving what they and their client are owed. Even more, there is a rock-solid argument that a single PDF is not “reasonably usable” because of all the factors mentioned above – you can’t easily search, sort, or filter the documents, nor can you parse out the individual documents for effective review.
The Judge in Johnson v. Italian Shoemakers, Inc., 2018 WL 5266853, at *2 (W.D.N.C. Oct. 23, 2018) granted Defendant’s Motion for Sanctions because Plaintiff repeatedly produced emails in PDF format, which the court recognized “is not how emails are kept in the ordinary course of business.” The Court was further bothered by the fact that Rule 34 requires documents to be produced so that they are “searchable and/or sortable by metadata fields,” and the emails produced as PDF files were not in compliance with the Rule.
The Magistrate Judge in Abbott Labs. v. Adelphia Supply USA, 2019 WL 3281324 (E.D.N.Y. 2019) recommended harsh sanctions and a default judgment against a Defendant. One factor justifying the sanctions was that they produced emails and invoices in a single, unusable, 1,941 page PDF file.
You don’t want to face sanctions and disputes when you can easily avoid this by putting in a little more effort during discovery. Even if opposing counsel didn’t specify a preferred form of production, the Federal and State Rules are enough reason for a judge to rule against you if you produce documents in an unusable format such as a single PDF.
Fortunately, if you are on the receiving end of this type of production, there’s evidence that the judges will rule in your favor, even if you didn’t solidify an ESI protocol at the Rule 26(f) Conference. (Still, ESI protocols are a foolproof way to make sure opposing counsel will be held to the proper standards of production.)
How Do You Produce ESI Correctly?
To be clear, PDFs can be an acceptable form of production as long as a) both parties have agreed to that particular format, and b) the PDFs represent individual, Bates stamped documents accompanied by metadata extracted from the original electronic files. Read our post on ediscovery production formats to learn more about the different types of productions and what they should include.
The only way to deliver proper productions is to utilize the right tool, which is a document review platform such as Nextpoint. For your own productions, you can ingest the native electronic files into your ediscovery software so that all the data is properly preserved, processed, extracted, and indexed. Then, you have the ability to export and produce relevant files in whatever format is requested (e.g. native files, individual PDFs, load file, etc.).
When receiving document productions in ediscovery, you’ll want to receive discrete, Bates stamped documents in a format like PDF or TIFF accompanied by a load file that contains all the relevant metadata. (You may also want to receive some files in native format, like spreadsheets.) You can upload these files to Nextpoint or another document review platform, and you will have a searchable database with filtering tools to organize and sort through all the potential evidence. If you do receive a production as a single PDF, Nextpoint offers a document splitting tool, but it still requires extensive manual effort and attention to divide the files.
ESI Protocols Are the Key
You should be communicating with opposing counsel about the forms of production and embody those decisions into an ESI protocol that you negotiate and agree on at the Rule 26(f) Meet and Confer. An ESI protocol simply codifies how both parties will produce ESI, even down to the metadata fields and how file exceptions will be handled. (Check out our free ESI protocol checklist to learn more – or reach out to our team for assistance.)
Developing and negotiating an ESI protocol at the beginning of a case will mitigate opportunities for roadblocks later on in discovery. (This post describes the challenges you might face without a comprehensive protocol.) We’ve seen our fair share of discovery disputes over document dumps, so take our word for it – don’t let a PDF production slow down your case.
