Is ESI Production Rigged Against Plaintiffs In Mass Tort Cases? One Expert Thinks So

The eDiscovery Daily Blog has been running  a series I wrote on the challenges facing Plaintiff’s counsel in the eDiscovery arena.  The most recent chapter was posted this morning on their site here and starts with a quote from Bob Eisenberg talking about forms of production.

Bob is well known in the eDiscovery community. He is the Director, eDiscovery & Information Governance at Larson Security LLC, Program Director at the Cleveland-Marshall College of Law’s (CMLaw) eDiscovery Professional Certificate Program and eDiscovery Counsel at Marc J. Bern & Partners LLP in New York City.  

Bob has strong feelings about dealing with productions from the Defense side and feels that in many cases, especially those in the field of Mass Torts,  the litigation game is rigged against the Plaintiffs. Here’s his full exposition of that position which I think you will find interesting.

In mass tort litigation the eDiscovery playing field is tilted in favor of the defense and it seems few are complaining.

Legal disputes, more often then not, succeed or fail as a result of the practice of eDiscovery.  However, in Mass Torts the advantage has been, and continues to gravitate, relentlessly, to the defense.  The access to vital evidentiary information, critical to sustaining plaintiffs’ cases, is being whittled away by virtue of the pro forma production of data to plaintiffs that are almost entirely in static imaged-based form.

Every effort is made by Mass Tort defense firms, in virtually every litigation (no matter how varied the types of ESI; no matter how limiting to plaintiffs) to assure that records produced in discovery are delivered by defendants to plaintiffs in an imaged-based format (Tiff or PDF) with load files for searchable text and metadata; and, practically never provided (except for a tiny proportion that are considered worthless as evidence in image format) as files produced in the manner in which they have been created and stored; that is, in their ultimately most utilizable incarnation; in native form.

The difference between native and imaged-based productions is stark, contrary to some commentators that are, by practice and inclination, defense-oriented.  There is a wealth of potentially invaluable information that is lost and likely forever irretrievable by plaintiffs as a result of a non-native production. Primarily, this information takes the form of inaccessible, yet critical, metadata. Here I must recommend an extraordinarily articulate and comprehensive article exploring the superiority of native over image-based data sets, authored by the prolific and profoundly knowledgeable, eDiscovery expert, Craig Ball (see “The Case for Native Production”, Craig Ball, Esq.,, October/November 2014.)

 In particular, with enormous productions, by the defense, of complex, often medically and scientifically esoteric documents, being commonplace, Mass Tort plaintiffs’ are severely hampered in the successful prosecution of their claims, by being rendered incapable, as a result of the defense’s ESI production format, of optimizing the use of Advanced Document Analytics, and Augmented Document Review (TAR) in the search and review of production sets.  These tools are commonly deployed on today’s eDiscovery platforms. It is productions in native (or near-native) format that are able to maximize the efficacy of these tools; and it is these tools that are capable of achieving a just outcome in disputes of critical importance – indeed, sometimes of life and death significance – to Mass Tort plaintiff-litigants.

The inarguable “bottom line” is that, in proving their case Mass Tort plaintiffs have become increasingly reliant upon Advanced Analytics and TAR, as the datasets produced by the defense become increasingly voluminous and complex in their make-up.

The arguments advanced by the defendant corporations, in multiple Mass Tort actions, in support of an imaged-based production, are, curiously, similar in scope and details; and, in fact, alike, as well, in lack of persuasiveness.

Below is what this writer has encountered as the most prevalent “supporting” arguments raised by defense counsel in defending, and insisting upon, the production of image-based productions in lieu of those in native format.

None can be categorized as persuasive. These enshrined obstructive orthodoxies of the defense in Mass Tort litigations cannot be permitted to continue. They render it impossible to ever truly level the playing field, and provides impermissible armament to a defense that, in most instances, from the inception of the litigation, maintains an enormous advantage in financial prowess and other resources, and, accordingly, can effectively inhibit the realization of justice and equity for thousands who have been grievously injured through no fault of their own.  The above is an especially powerful counter-argument in light of recent revelations of the failure of the Federal Drug Administration (FDA) to appropriately distinguish between its pharmaceutical manufacturing stakeholders and those that should constitute its most important constituency: The Consumers (see NY Times editorial column “When Medical Devices Go Unscreened”, NYT, Sunday, May 5, 2019.)

In Mass Torts, in an effort to avoid ESI productions in native form Defense counsel frequently advance the following seven arguments:

1.  The Pre-Existence of a Defendant’s Discovery Database containing all documents to be produced. This is often an attempt to short-circuit any meaningful meet-and-confer discussion in connection with native format production with the defense asserting that the entirety of the documents whose production is demanded have been produced previously and are housed (and sometimes alleged as stored for time immemorial) in a Legacy Discovery or Litigation database as an imaged-based collection.   Accordingly, the argument goes, requiring production now in native can only result in an undue burden and cost.

      Counter-Argument: The documents so housed in these existing databases were      produced in separate actions in which the Requester had not required production in native form, or, having done so, had, for its own reason, accepted a production that met their minimal requirements; a production that was, in effect, “good enough”.     In the matter in which you provide representation, the tools you will use and the document searches and filtering you will conduct, require nothing other than ESI in its native format.

2. It is problematic and unduly costly to redact a production collection in native form.

Counter-argument: This is a red-herring argument grounded in ancient eDiscovery           history. In fact, redaction in native can often be accomplished inexpensively and efficiently (by, for instance, altering and saving the redacted document to a new file)  and, besides, redacted records, in the overwhelming proportion of matters, constitute a  very small percentage of the production; accordingly, redaction should not be a “Tail  Wagging the Dog”, and the determining factor in selecting the production format of vital  evidentiary material.  However, since the number of records are typically small, where redaction in native is burdensome, the redacted record can be produced in image- format with load files;

3. It is unduly burdensome and costly to require an entirely new review of relevant documents now being produced in a new production format

Counter-argument – The continuing, unaltered existence of the identical records to now be produced in their native form is a given. These are, most likely, the same             discoverable records that have already been produced in dozens, hundreds or even      thousands of cases comprising the Mass Tort litigation.  Indeed, their non or altered    existence would constitute an admission of spoliation of the most egregious nature.     A native production is, in virtually all matters, not unduly burdensome for the defense to execute.  It is usually strikingly less costly than the earlier image-based  production. Native ESI is capable of being saved to and produced upon inexpensive media that has remained in common usage for decades;

4. Bates identifiers are diabolically difficult to affix to a production in native format.

Counter-argument –  An anachronistic argument that dates back to the pioneering days   of eDiscovery.  Now Bates identifiers are frequently affixed to native files by changing the name of the file to reflect the Bates number.  Also, legends indicating   confidentiality, or the existence of a Protective Order, or other category, can also be    endorsed on records in their native format.  Another common approach is to affix Bates  identifiers on documents only at the time they are needed, such as for a deposition or  trial, where at that time an image bearing the needed endorsements can be generated.  Typically, these endorsed exhibits will impact only a small proportion of the entire collection, and entail limited effort.  Again, to allow the need to “Bates Stamp”  a very small proportion of the documents in a discovery collection to inhibit the entire production in native, is highly counter-productive, to say the least.

5. Federal Rule of Civil Procedure 34 does not require a production in native (an argument, of course, advanced in the federal system, or in those state courts where eDiscovery regulations reflect a similar Rule.)

Counter-argument: This position is actually very much beside the point, and calls for  a “so what” response.  Plaintiffs are not arguing to the contrary.  Yes, this is what the Rule does not require; so, it is true, but irrelevant, if the production in native does not constitute an undue burden or cost to Respondent, and the production in  image  format can be shown to render the production to Requester one that, under the   circumstances , is not reasonably useable.

6. The image-based production has, in a de facto sense, been accepted by the court (through the vehicle of time and repetition) as the “default mode of production”; that is, courts in other jurisdictions presiding over cases concerning the same medical devices, vaccines, medicines, etc., or even the judge presiding in the present Mass Tort litigation, has routinely permitted an image-based production with load files.

Counter-argument: This is, likewise, beside the point; since your position in the  matter you are engaged in paints a portrait of a non-burdensome production in native,  starkly contrasted to an eDiscovery platform technology that can be, unnecessarily and critically crippled by a production format that the defense is coercing plaintiffs  to accept in a stark effort to assure that the use of analytical tools will not be  optimized or may be negated altogether. 

7. Productions in image format are of equal value to a native production when analytical tools are applied. Here the core argument by the defense, is that the defense’s image-based production does not undermine the use of plaintiffs’ most important eDiscovery technical tools; and, that an image-based production metadata load file, as opposed to the complete and unrestricted existence of metadata values in a document collection in its native form, are of equal efficacy when using analytics.

Counter-argument: This argument is, simply, not true.  A collection rendered without        the stripping of metadata values (native) will always bear more potentiality to reveal        vital evidence than one that relies on the fashioning of a metadata load file (image-          based). All too frequently, the load file created for an imaged-based production                  bears defects in multiple aspects, or is incapable of being adapted for use for the                analytics used by a particular eDiscovery platform.  Some knowledgeable have                  estimated that between 70% to 80% of metadata load files are marred by defects. In          actuality in order for the search and review of a static image-based production to              fully benefit from analytical tools, the extraction of metadata and its re-introduction         into a load file must be virtually perfect.  A standard rarely achieved in any discipline      

  All of this confrontation may, or may not, come down to a vigorously argued Meet-and-  Confer before the court or even a hotly advocated Motion to Compel.

The arguments rendered above by the defense in justification of its refusal to produce in native, are a cocktail of the dubious, bogus and unfounded.  A stew of junk or half-baked technical science and disingenuous advocacy, seeking to rationalize the unreasonable, while tilting that proverbial playing field as far as possible in support of  the defense in Mass Torts.





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