I bring to you Branhaven LLC v. Beeftek, Inc., —F.R.D.—, 2013 WL 388429 (D. Md. Jan. 4, 2013). In this case, the District of Maryland court sanctioned both the lawyers and the client for electronic discovery violations.
This case is instructive to both – attorneys and clients. It has long been established that there is a duty to disclose and to preserve relevant information. That is, information that pertains to anything that could relate (in any way) or might relate to the lawsuit.
Since Zubulake v. UBS Warburg, which had around five different electronic discovery disputes, the courts have embraced the concept that the duty to disclose includes electronic information.
So what is electronic information? It is a very broad definition, which includes information stored in your cell phone, smartphone, computer, laptop, tablet, and so on. This information includes not just what you see (i.e. text in a document), but also information about the document (which is commonly referred to as meta-data).
Coming back to the case – this case is interesting and instructive because it highlights and confirms that lawyers too can be held responsible for the duty to disclose and preserve information.
This case regarded the format of production. When the plaintiffs’ counsel signed the response to requests for production, the attorney stated that responsive documents would be made available for inspection and copying. By signing the legal document, the attorney was in fact certifying that the plaintiff had given the attorney all responsive information and documents.
So what happened? The attorney, at the time he signed the court document, had merely provided the requests to the client and had not received any documents. The servers and the laptops had not been accessed and had not been searched.
When the documents were produced (a couple of days before the deposition), the documents were in PDF format and had no bates stamping. Bates stamping are the numbers that are used to identify the document at a later point. When a document is converted to a PDF, the document does not have the meta-data of the original document.
Given the circumstances, the court sanctioned the plaintiff and the plaintiffs’ lawyers. The court explained,
Branhaven essentially misled defendants and their counsel, in its affirmative statement that responsive documents would be ‘available for inspection and copying at a mutually agreeable time,’ while in fact not knowing what if any responsive documents there might be and where if ever they would be identifies and produced.
Further, when addressing the delay of the production of documents, the court stated,
Plaintiffs’ counsel’s failure to identify and produce this discovery in a timely fashion and in an acceptable form and manner while suggesting – if not misleading defendants – that it had identified responsive documents is sanctionable.
Regarding the format of the documents (PDF instead of the native format; and no Bates stamping), the court held that plaintiff and its counsel violated the rules. The court explained concluded that producing documents in a PDF format “appear[ed] contrary to customary and reasonable practice especially in voluminous productions and further complicated defendants’ review of the documents, causing further expense and delay.” Further, the court indicated that documents without Bates stamping and .tiff format were “not reasonably usable,” and therefore violative of Rule 34.
Ultimately, the court berated plaintiffs’ counsel. The court sternly stated (emphasis added),
As plaintiff’s counsel has an affirmative duty to assure that their client responds completely and promptly to discovery requests. Their inaction seriously frustrated the defense of this case. The record here demonstrates a casualness at best and a recklessness at worst in plaintiff’s counsel treatment of their discovery duties.… If all counsel operated at this level of disinterest as to discovery obligations, chaos would ensue and the orderliness of the discovery process among counsel in federal courts, which is exquisitely dependent on honorable attorney self-regulation, would be lost.
There are many ways these sanctions, or the mitigation of these sanctions, could have been avoided. First, the attorneys could have specified the format of the documents during their Rule 26(f) report and joint discovery plan. Second, nowadays, there are many vendors that when they scan your documents into a discovery program (such as Summation), they immediately insert Bates stamping.