It’s surprising—or perhaps not, depending on your outlook—how often people settle for less because it’s easier.
We watch a TV show we don’t especially care about instead of reading a book because we’re tired and it’s easier to just veg out on the couch. We order fast food, even though it costs more and isn’t as good for us, instead of cooking at home because we’re short on time and don’t have the mental energy to plan ahead or shop for necessary ingredients.
And sometimes, that search for an “easier” way follows us to work, bringing similarly lackluster consequences along with it.
We recently came across a case that demonstrated how the preference for easier ediscovery evidence—by which we mean evidence that looks and acts more like paper, even when it clearly isn’t paper-based—may lead us to accept lower evidentiary standards. Let’s take a closer look at what happened in In re Syngenta AG MIR 162 Corn Litigation.
The Facts of In re Syngenta AG MIR 162 Corn Litigation
This litigation arose from the agricultural company Syngenta’s addition of a genetically modified trait, MIR 162, to its commercial corn seed. Unfortunately for corn farmers, the Chinese government has refused to accept imports of corn with the MIR 162 trait. The plaintiffs in this case allege that they “suffered economic losses” from Syngenta’s addition of MIR 162 and China’s refusal to accept that corn.
In this motion, one party, Louis Dreyfus Company Grains Merchandising LLC (hereinafter “LDC”), sought permission to produce its discoverable electronically stored information (ESI), at least initially, in its native format. In re Syngenta AG MIR 162 Corn Litig., No. 16-2788-JWL (D. Kan. Sept. 25, 2018). (Don’t be intimidated by what appears to be a long opinion; yes, it’s about 60 pages in its entirety, but the opinion itself only occupies about two of those pages. The rest is just prefatory material listing the parties and their counsel of record!)
The court wasn’t buying LDC’s argument, though, and denied the motion. Why?
First, the court’s ESI Protocol Order called for evidence to be produced in TIFF image format. We’ll talk more about this—since it actually represents a couple of problems all rolled into one—in a moment.
Second, LDC had already sought (and received) an extension, claiming that “technical complications and infrastructure limitations made it impossible to meet the deadline” for discovery. That, the court noted, would have been the time for LDC to mention “any difficulty [it] would have producing the documents in TIFF format,” but it failed to do so. When the court granted a modest extension, it clarified that its intent was “not [to] impact the parties’ ability to conduct and complete fact depositions by the current … deadline.”
Third, LDC violated the court’s ESI Protocol Order by producing “a large number of documents in native format” without seeking Syngenta’s approval for the variance from the order or even explaining that it was doing so. To be clear, the court’s standing order specified that a party seeking an exception from the order’s requirements because it would be “unduly burdensome or impractical” should “promptly notify” the party requesting the discovery to seek an agreement on modified production requirements. LDC pretty much skipped that step. It argued that it did not convert the ESI to TIFF format so it could “get the documents to Syngenta as expeditiously as possible,” claiming—vaguely—that conversion “adds ‘substantial time’” to the production schedule.
Syngenta was not pleased. It pointed out that “production of documents in native format … creates confusion when a party wishes to reference a particular page.”
That’s right; this comes down to Bates numbering. (Not to be confused with the Bates Motel, though frankly we find both outdated and scary.) This “technology” dates back to the 1890s, yet it persists in ediscovery because it makes it easier to pinpoint specific pages in evidence.
Hold up, though, you say. What’s wrong with Bates numbering? It absolutely does make it simple to refer to specific evidence! What’s the problem with that?
The problem is that Bates numbering assumes that evidence can be “printed” or reduced, in some way, to a paper-like or quasi-paper format. And that’s just not true for all evidence. Like spreadsheets, or databases, or—our specialty—dynamic online evidence from websites and social media platforms.
Unfortunately for LDC, it had the temerity, after violating the court’s standing order, to ask the court to “relieve it from the production requirements of the ESI Protocol Order.” It’s already clear that LDC made several mistakes that contributed to the court denying its motion, but let’s take a closer look at a few of those errors.
Where LDC Went Wrong in Explaining the Importance of Native-Format Evidence
For starters, LDC should have followed the court’s protocol by “promptly” notifying Syngenta that it wanted to “deviate from the image/TIFF-format production” it had already agreed to. Instead, it just up and produced native-format documents without explaining why it was doing so.
Additionally, LDC “offered no evidence to support its ‘burdensome’ and ‘impracticality’ arguments.” It stated that converting the native files it had already produced to TIFF format “would take approximately two weeks,” but that conversion was still possible within the discovery timeline. It did not explain how long it would take to produce them in TIFF format “in the first instance,” instead of producing in native format and then converting. The court was therefore “not convinced that it is impossible for LDC to meet” its discovery deadline. (The court also reiterated that it was “determined to keep this case moving forward” within the established discovery timeline, which didn’t help matters for LDC.)
More critically, though, LDC explained its preference for native-format production only based on timing, arguing that it had to “produce a huge number of documents under extreme time pressure.” It also conceded “that Syngenta would be prejudiced in depositions because documents produced in native format do not contain a Bates stamp on every page.” LDC made the mistake of characterizing this lack—which the court clearly thought was important—as nothing more than a “minor inconvenience.” Finally, it clarified that it would eventually convert all of its produced files to TIFF format. There, though, LDC complained that “Syngenta is unreasonably insisting that all documents be in TIFF before the deadline.”
LDC might not have thought that particular statement through, since the court was the one to establish both the TIFF format requirement and the extended deadlines for discovery and to “unreasonably” expect the parties to follow those rules.
Let’s examine that ESI protocol for just a moment. LDC’s first error was probably allowing the court to establish the format for its ESI production rather than reaching an agreement with Syngenta directly. In fairness, that kind of agreement may have been harder to reach in multidistrict litigation like this than it would be in a typical case, but it’s still a weakness in LDC’s argument.
But even there, LDC evidently made no particular effort to convince the court about why some evidence—maybe not all, but at least key types—should be presented in native format rather than as TIFF images.
And why is that? We’re glad you asked.
How the Quest for “Easier” Evidence Might Impede Evidentiary Standards
Everyone in this case apparently agreed: “there is no dispute that documents in TIFF format are easier to work with and enable depositions and court proceedings to run more smoothly.” These parties aren’t the only ones to think so; the court cited the Sedona Conference for its position that native production bore “disadvantages” including the “inability to redact ESI effectively” or to apply “page-level Bates numbering.”
Both the court and the Sedona Conference are right, to an extent. Discovery is still—despite all the advances in ediscovery technology—a largely paper-based construct. When discoverable ESI strays too far from familiar quasi-paper formats, some litigants (and, obviously, some courts) get really uncomfortable.
But with an accelerating move toward complex, dynamic, non-paper-based ESI, this preference for quasi-paper discovery represents a limited world view. Not all evidence can be easily reduced to a static, paper-like image. In many cases, there is better evidence out there, but we can’t use it if we let ourselves be held back by a restrictive insistence that all ESI conform to one format.
Consider online evidence from websites or social media platforms. Can you capture the essence of a webpage when you print it out or convert it to a PDF or a TIFF image? What if it contains videos? Interactive elements like drop-down menus or fillable calculators? How does paper or quasi-paper evidence capture all of that?
When we stay stuck in a paper paradigm, we allow the quest for easier, more familiar-looking evidence to impair our evidentiary standards. Instead of getting the best evidence—a playable video, an interactive preserved website, a functional spreadsheet—we settle for a printed version that just isn’t the same.
Hanzo understands why—in at least some cases and with some types of evidence—native format matters. We cover everything you need in online ediscovery, from investigative tools that can help you locate helpful evidence all the way through website preservation tools that capture dynamic, interactive data in its original native format. In short, we’ve got everything you need to find, capture, and present the most compelling online evidence possible. And we know what professionals in investigations, ediscovery, and regulatory compliance need, because that’s who we’ve designed our products and services for.
Don’t let the quest for “easier” stand in the way of getting—and producing—high-quality evidence. When you need to collect online evidence in its native format, get in touch with us and start capturing confidence.