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Agreement on Native Productions Notwithstanding Disputes Regarding Deduplication, Metadata and PDF Sub-Files

Posted on December 26th, 2014

In Williams v. Convival Corp, et al., Case No. 2:13-cv-02019-APG-PAL (D.Nev. December 5, 2014), the parties disagreed on an appropriate ESI Protocol Order and sought the court’s guidance.

Plaintiff wanted the protocol to begin with a guidelines section that i) encouraged reasonable eDiscovery with the goal of limiting cost, burden and time; ii) required good faith cooperation regarding the collection of ESI; and iii) adopted the proportionality rules of FRCP 26(b)(2)(C) and 26(g)(1)(B)(iii).  The court agreed with Plaintiff’s suggestion and ordered the language inserted.

Plaintiffs wanted to define “data” as ESI but with a limiting sentence stating “data” would only include metadata to the extent metadata is reasonably relevant to the claims or defenses at issue. Defendants claimed this would be too limiting on the scope of discovery.

Defendants wanted a provision requiring deduplication of email threads and specifies the method for deduplication, whereas Plaintiff did not have such provision.

Defendants also objected to a proposed ESI protocol that stated Plaintiffs could produce on PDF file containing hundreds of thousands of sub-files, where they then would have to review and separate the sub-files.

The court considered the proposals and adopted Plaintiffs language on purpose, cooperation and proportionality. It also agreed with Plaintiff’s metadata language as more consistent with the Sedona Principles Best Practices Recommendation. However, the court agreed that Plaintiff should not produce one PDF file with thousands of sub-files for Defendant to sort, and it agreed with Defendant’s suggestion regarding deduplication of email.

Notably, notwithstanding the parties’ disagreements on the aforementioned aspects of the ESI protocol, there was no disagreement regarding the production of natives for Microsoft Word, Excel, and PowerPoint files.

ILS – Plaintiff eDiscovery Experts

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