Getting TIFFed Off: The Dangers of Not Going Native with ESI . . . Or, The Perils of Killing the Bunny

For a full understanding of the Great TIFF v. Native Debate and the dangers of choosing the wrong side, try this. Picture a bunny.

Why not? Spring is near, and Easter is only a month away. So, picture a bunny. You can cuddle it, watch its little nose twitch, listen to its heartbeat, even observe its behavior and follow it home. If you are one of those lucky creatures who speak bunny -- like computer programmers speak source code -- you can politely inquire where it's been, what it's seen and who it has spoken with.

Electronically-stored information (ESI) such as e-mails and spreadsheets, is like that living bunny. It exists in pure native form, possessing an exotic birthday suit from which can be gathered the hidden details known as metadata -- who authored the data, who sent and received it, the underlying formulas behind the numbers in an Excel spreadsheet, where files or e-mails were stored, who read or possessed them, when they were created, accessed, modified and saved. Such ESI produced by a party is fully searchable. Like the bunny, it can talk to your opponent, and tell them things.

But herein lies the nasty little secret: attorneys and their clients do not want the bunny to talk to their opponents. In fact, they would love to produce ESI in such a way that their opponents cannot communicate with the bunny. But in most cases, their opponents' requests for production specifically ask them to turn over the bunny. So what can they do?

Picture that bunny, dead. Whacked. A poor dead bunny, handed over to the other side. No pulse. No heartbeat. You can't follow a dead bunny home. You can't talk to it, and it certainly can't talk back. That dead bunny is a TIFF, or "Tagged Image File Format," like a PDF. When the bunny is snuffed and the electronic data "TIFFed" -- i.e., printed out in hard copy and then re-scanned -- it becomes dead and frozen, rather than dynamic and searchable. What you see is what you get. The hidden information, the ability to search millions of pages of text for smoking gun language, and to peek at its living history, is lost. And your opponent has no way to recreate it. There is no way for him to resuscitate that bunny. Sure, he can take a DNA test of the dead bunny: convert the tiny elements of TIFF images -- the individual letters, like the Ts, As, Gs and Cs of a double helix -- into searchable text format through optical character recognition ("OCR"). But OCR does not solve the main problem: identification of the lifeblood, the living metadata of the bunny's life history (the who, what, where, when and why) that does not appear in the TIFFs.

Still, what's wrong with this? Why not always produce ESI in TIFF rather than native metadata form? Why not always produce a dead bunny? Isn't this a perfect solution? Unfortunately, no -- as one law firm, two lawyers, and their very unhappy client just learned in Bray & Gillespie Mgmt. LLC v. Lexington Ins. Co., No. 6:07-cv-222-Orl-35 KRS (M.D. Fla. Mar. 4, 2009). In short, Lexington wanted a live bunny and requested all ESI in native format without any alteration or deletion of metadata. Its opponent Bray & Gillespie (B&G) produced a very dead bunny, and was called out by the court for doing so. And that was before B&G's counsel began lying about who killed the bunny and when.

At issue were material misrepresentations made by two individual partners at B&G's counsel, Reed Smith: Berringer (who was involved in discovery) and Ellison (who was not). Berringer told the court that its client B&G killed the bunny by printing its ESI in hard copy and sending it to its former counsel Anderson Kill, who then scanned the documents to create the TIFFs that Reed Smith later produced when they took over the case. But Berringer's information was third-hand, and wrong. He could have contacted Anderson Kill, reviewed the original database, or talked to his client to determine the truth. He did nothing. Even an early draft of a declaration from B&G's vice president stated "electronic documents were extracted directly from individual computers" and given to Anderson Kill. These paragraphs were mysteriously omitted from the final version of the declaration.

The court found that B&G and its counsel had deliberately ignored evidence that in fact, the ESI had been obtained from the client in native and fully-searchable electronic form with metadata, in an Introspect database. In other words, Anderson Kill obtained a live bunny from the client. The bunny was then killed -- converted to TIFFs "using a program that was set to selectively exclude certain types of metadata" before production, which "removed or significantly degraded Lexington's ability to search the ESI and, accordingly, that it was not in a reasonably usable form as required" by Rule 34 of the Federal Rules of Civil Procedure.

Berringer waited until near the end of a hearing before the court to admit that the bunny had been obtained alive. Even then, he did not disclose what metadata was in the Introspect database or how the ESI was transferred to the database; did not disclose the existence of the Target Hard Drive with the original production or that Reed Smith had a copy of it. Instead, Berringer and Ellison made material misrepresentations as to why they did not produce this live bunny: they blamed Anderson Kill's refusal to allow them access to the database, which was not true. The court found that B&G “directly or through their agents deliberately manipulated the electronically stored information in such a way as to withhold from the defendants the information that had been requested, specifically metadata,” and ordered production of the live bunny.

The end? Not even close. B&G produced the bunny -- alive, but with an impaired memory, or limited metadata. In short, they gave up a lobotomized bunny. The court responded by requesting a supplemental response addressing why sanctions should not be imposed upon B&G and its counsel. After a second hearing, the court found that Lexington was severely prejudiced, and ordered production of the entire Introspect database in whatever form Lexington wanted, with all costs borne by B&G, and 60 days of extra discovery for Lexington to conduct any follow-up. The court then turned to the issue of Rule 37 sanctions for killing the bunny, lying about it, and then following up with a brain-damaged bunny:

Anderson Kill, the original law firm that gathered the data: NO SANCTIONS. The firm, Anderson Kill, was off the case by the time production occurred and gave Reed Smith full access to all data. While responsible for putting together the TIFF disks, it was open with Reed Smith about the fact that had been transferred from native electronic format with metadata, to TIFF format. And it did not produce the TIFFs.

A new attorney on the case who joined after the discovery misconduct: NO SANCTIONS. But the court warned him against "blindly relying on outside counsel falls short of the duty he has as an officer of the court, as counsel of record, and as an advocate for his client."

Ellison, counsel of record that was not responsible for the discovery misconduct: SANCTIONS. The discovery misconduct was done under his supervision, making him “an attorney advising” the defendant on the discovery misconduct, and thus personally liable for Rule 37 sanctions.

Berringer, counsel of record responsible for the discovery misconduct: SANCTIONS, pending a hearing. The court issued an order to show cause as to why Berringer should not be personally sanctioned for his misconduct.

Reed Smith, the law firm of both counsel of record: SANCTIONS. Law firms that employ attorneys who "have engaged in a pattern of withholding and concealing information concerning discoverable material and misrepresenting to the court and opposing counsel material facts about numerous failures to comply with discovery requests and Court orders -- including falsely blaming a lack of third-party cooperation and fabricating a false story about the form in which ESI was gathered and stored" are subject to "significant sanctions." The Firm and its counsel were jointly and severally liable for Lexington's fees and costs.

The court rejected all of B&G counsel's excuses for killing the bunny, including that: (1) Lexington did not provide adequate notice of its requests for metadata because they was buried in "five pages of boilerplate definitions and instructions"; (2) re-production would be too burdensome as it would require a new privilege review -- which was not true, because the documents in the Introspect database had already been reviewed for privilege; and (3) B & G was entitled to produce ESI as maintained in the usual course of business and in a reasonably usable form -- an odd argument, since maintenance of ESI in the "usual course of business" was in native metadata form anyway.

The lessons here are many, and clear.  Counsel at Reed Smith could have avoided this whole mess by confirming the trail and treatment of ESI as it passed hands from the client to opposing counsel. Similarly, the court noted that B&G and its counsel could have easily resolved the dispute before either hearing by handing over the live bunny: "by producing the complete metadata load files from the Introspect database for the TIFF images." So, don't kill the bunny. Don't lie about who killed the bunny and when. Don't try to get away with it using lame excuses as to why you killed the bunny. And don't try to redeem yourself with a brain-damaged bunny. Instead, to avoid sanctions, especially when document requests specifically ask for ESI in native format (as almost all do now), turn over the bunny.

Alive and kicking.