PDF for Lawyers

PDF redaction gone awry

No matter how many times one explains the proper way to redact information from PDF files, there will continue to be major screwups.   What's a major screwup?  This would be a major screwup.  

Okay, once more: there are redaction tools built into Adobe Acrobat 8.0 and 9.0.  If your law firm doesn't have either of these versions it's time for an upgrade.  Oh, and don't forget to train your lawyers and staff on how to do proper redaction.

Producing paper copies of emails - Warning!

The new Federal Rules deal with how 'electronically stored information' must be produced. Emails are the quintessential example of ESI. A recent decision from a Kansas federal court dealt with a plaintiff's complaint about document production in an employment dispute. The plaintiff requested emails, but did not specify the form of production. The defendant produced the relevant emails in paper form, after having them converted to PDFs. The magistrate ruled that this was impermissible and ordered the emails to be produced again in 'native format.'

Let me repeat a key point: the plaintiff did not specify what format she wanted the the email production to be in. And this didn't matter. Why?

Because the new rules say that, if the requesting party doesn't specify the form, then it must be produced in either (1) native format, or (2) "a reasonably usable form." The federal magistrate found that converting the emails to paper was not production in "a reasonably usable form." In doing so, there was some discussion about how paper can't be searched in the way an electronic file can be searched:

"[i]f the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature."

This begs the (unanswerable) question: would the result have been different if the defendant had produced text searchable PDFs?

After close reading of the case, I would argue that it well might have. The only reason to prefer the 'native format' of the emails would be to examine metadata, which in most cases isn't really all that useful. The judge didn't mention metadata and I get the sense that the plaintiff didn't make that argument (perhaps because she had a better argument). In any case, it's safe to say that if you are asked for emails in a federal court case you should be wary of producing paper copies. If you do, and plaintiff complains, then you might be required to produce the emails again in native format.

Producing documents is always frustrating. But having to do it twice for the same request is supremely frustrating. So, if you want to produce emails in other than native format, you should—at a minimum—produce text searchable PDFs.

(More coverage of the White case here)

10 rules for managing Electronically Stored Information

John Barkett, a partner in the Miami office of Shook, Hardy & Bacon shares his thoughts on managing ESI in this informative podcast. Among the tips: identify an 'electronic document team' in your organization, and then find the most qualified person to serve as a spokesman to testify in court (if necessary) about the steps taken to comply with ESI obligations. Oh, and since we're talking about digital technology, make sure you have a 'back-up spokesperson.

Lots of good thoughts by Mr. Barkett, so if you want to get a handle on how to manage E-Discovery then listen to this short podcast.