US judge sanctions lawyers for PDF production and wrongful certification

Article by Robert Hilson for ACEDS

In a case that airs broad and deep-seated confusion over federal e-discovery obligations, a US magistrate judge in Maryland has sanctioned plaintiff’s attorneys for Branhaven, LLC in a trademark infringement suit for wrongfully certifying the completeness of an e-discovery production they did not perform, review or supervise.

The lawyers for Branhaven, one of whom was a partner with 25 years of litigation experience, simply delegated the collection and review of documents to their client and trusted it to produce all relevant materials.

“This ruling is really about poor conduct,” Hugh Marbury, attorney for defendants Beeftek, BT Selection and Prime Beef Marker at DLA Piper in Baltimore, tells ACEDS. “To my knowledge, this is the first published opinion sanctioning an attorney for wrongly certifying an e-discovery production.”

Counsel’s “meaningless and arguably misleading response” showed “callous disregard for their responsibilities under the rules,” wrote US magistrate Judge Susan Gauvey in a 21-page memorandum opinion of January 4. Plaintiff’s lawyers, she said, had “no knowledge” of which documents were produced.

This withering criticism stole headlines, but it was the fine print over the form of production that is raising eyebrows and questions about the state of e-discovery knowledge among judges and the litigators who appear before them.

Judge Gauvey, who appeared to deviate from a heavy body of case law and Rule 34 of the Federal Rules of Civil Procedure, said the PDF format in which many of the plaintiff’s documents were produced did not constitute a “reasonably usable form.”

Instead, she said, the records should have been produced as Bates-stamped TIFFs, even though this form is considered of similar or inferior quality and is more expensive to produce.

The ruling is being called a throwback to discovery’s paper days because it allows, even requires, production of ESI in a “static” format. It is evoking fear that six years after amendments to the Federal Rules of Civil Procedure to deal directly with e-discovery, the knowledge of e-discovery manifested by judges and lawyers in US courts is not keeping pace with technology advances.

“These sort of fights over the form of production can be as logical as reverse burning MP3s to 8-track because an attorney wants to practice law in the 1970s,” says Joshua Gilliland, and e-discovery attorney and author in Santa Clara. “We have to use 21st Century tools for our 21st Century clients.”

For the complete article click here: http://www.aceds.org/in-ruling-of-firsts-us-judge-sanctions-lawyers-for-pdf-production-and-wrongful-certification/