PDF for Lawyers

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.

Join community of Acrobat users

I happy to announce that Adobe has created an online forum called Adobe Acrobat User Community. It's free to join, and there are lots of good reasons to do so. First of all, there are some great free online seminars coming up (e.g. Digital Signatures on Dec 17th, and Scanning & OCR on Jan 21st of next year).

But, if you are in the legal profession, a great reason to join is the sub-group on Legal issues. I am a co-moderator of that forum, along with David Masters, whom many of you know is the author of The Lawyers' Guide to Adobe Acrobat. The more people who participate and share their knowledge the more beneficial the forum will be. So stop by and sign up if you can.

Did I mention it's free?!

PDF workflow in law schools

PDFs seem to be underutilized in the legal profession.  But while lawyers are not flocking to PDFs in the way that they should, perhaps law students will start the trend.  One way this might happen is if the students start using a product called ecasebriefs, which provides digital briefs (e.g. PDF files) of cases in popular legal text books.

Let's say you are taking Civil Procedure and the professor has assigned Friedenthal, Miller, Sexton & Hershkoff as your textbook.  For $27 a student can download a PDF set of all the cases in the textbook, highlighted and with commentary balloon notes inserted by attorneys.  Since most law students have laptop computers these days this product can be a great convenience.  And law students love to buy stuff like this, or at least they did when I was in law school.

Ecasebriefs has PDF briefs for every legal textbook used in the core curriculum of law schools, and I'm betting that with low printing costs (PDF) and cheap distribution (Internet), the company will be aroudn for a long while.

I haven't seen the product firsthand, but from looking at the screenshot it seems like someone might be able to avoid buying the more expensive textbook by getting this product. In any event, the ecasebrief has a number of useful features that printed textbooks can't offer.  And if the student had the full version of Acrobat they could add their own notes and highlighting on top of the pooped out notes by the ecasebrief authors.  If many law students get used to using PDFs as part of their workflow then it will be a lot more natural for them to use PDFs in their workflow when they practice law.

Novel way of rating lawyers

Avvo.com is a new online rating service for lawyers, and as with all bold new ventures it's stirring up controversy.  The service is only available in nine states (as of this post), but hopes to expand steadily over the next few months.  The Florida Bar has recently raised questions about how Avvo operates.  No doubt there will be strict scrutiny from other bar organizations as Avvo expands its online presence and attempts to breathe new life into the process of rating lawyers.

Proving PDF documents in court

Dunno if this is helpful, but someone asked this question on Google Answers and here is the resulting response.

ABA Journal's new website

Check out the ABA Journal's new website.  Very impressive new look!  Also note that the Journal is now listing legal blogs (which they term 'blawgs'), including this one.

Casemap Seminar in Los Angeles

Most litigators by now know about Casemap, an invaluable case organization tool. On May 8th there will be a CaseMap user summit at the Biltmore Hotel in Los Angeles. This is not a training seminary, but rather a series of sessions on best practices in the use of CaseMap, TimeMap and TextMap.  The attendees will be lawyers and legal professionals who use Casemap daily; so this is a truly unique learning opportunity.  The registration fee is $395, and attendance will earn 6 hours of CLE.  For more information email Nancy Smith or call 904.276.1028.

ABA Opinion re: ethics of examining metadata

The American Bar Association has released Formal Ethics Opinion 06-442 which establishes that lawyers are free to examine hidden metadata in email and other electronic documents that are received from opposing counsel.

Online Seminar on Trial Presentation Software

What are your options if you are going to trial and want to use new technology to present your case?  Perhaps you've been embarrased carting foam boards into court for your closing argument, only to see your opponent dazzle the audience with a highly interactive Powerpoint presentation.  If you want to learn more about your choices in presenting your case at trial sign up for the ABA's online CLE program scheduled for Thursday, November 2nd.  Paul Unger is one of the people who will be talking, and I can say from personal experience that he knows his stuff. He was a practicing attorney for many years, so he understands technology from the viewpoint of the lawyer who uses it.