Vol. 77, No. 7, July
Definition of Terms
Some terms used in this article require clarification. Please note,
however, that the following are not comprehensive definitions.
Metadata is a term of art that literally means
"data about data." In fact, it is hidden data that can be seen only when
an electronic document is viewed in its native format. Often, when a
document is created by a particular program (such as Word), there is
metadata about the document that can be viewed only if the data is
opened by that program. For example, email may be stored in directories
that can be accessed only by Microsoft Outlook or Outlook Express. When
you get the hardcopy of email that comes from Outlook or Outlook Express
you are missing a great deal of metadata, which may include header info
concerning blind copies of documents, date stamps, routing information,
and so on. The file containing the metadata of Outlook is called the
OCR, or optical character recognition, is
a widely used method of converting images into readable and searchable
text. Documentary evidence can be imported into a computer system, and
"digitized," in two primary ways. The evidence can be scanned in as an
image or as an OCR. OCR is often performed using programs such as
OmniPage Pro® or TextBridge. ® OCR will
work only on documents that have the characteristics of a word
processing document. When you OCR a document you convert the image of
the document into a text file that can be word searched and manipulated
just like any word processing document. Today, many programs can be used
to OCR images, although it may be known by a different name. For
example, Adobe Acrobat® authoring software refers to OCR
as paper capture.
PDF, short for portable document format,
was developed by Adobe Systems Inc. as a unique format to be viewed
through Acrobat viewers. A PDF file (created on one computer) can be
viewed with an Acrobat viewer on most other computers and on other
platforms. "For instance, you can create a page layout on a Macintosh
computer and convert it to a PDF file. After the conversion, this PDF
document can be viewed on a UNIX or a Windows machine." Padova,
Adobe Acrobat 6 PDF Bible 4-5 (Wiley Publishing 2003). A PDF
file is like a photograph taken by Adobe Acrobat publishing software of
a document in its native format. If you convert a Word document to PDF
you will preserve all the formatting characteristics of the document and
it will appear in an Adobe Acrobat viewer just as it did when opened in
Word. None of the metadata of the original document will necessarily be
visible, however, and you cannot manipulate or change the document to
the same extent that you could in Word. In fact, it is possible to add
security to a PDF document so you can't change or manipulate it at all.
You can OCR, or "capture," PDF documents. The standard version of Adobe
Acrobat publishing software (as distinguished from the omnipresent free
"reader," which can be downloaded in many places on the Web) costs
around $300. However, it is highly sophisticated and versatile software
that can perform a variety of useful functions, including the scanning
of documents and preservation web pages. Today, it is as useful as word
processing software, and every law firm should seriously consider
purchasing and learning to use it.
files are similar to PDF files, but they lack
the sophistication of PDFs. In the author's experience it is a much less
versatile format that requires special software in order to be properly
viewed and manipulated. Whereas a great deal can be done to modify and
secure PDF files using relatively inexpensive Adobe Acrobat publishing
software, to successfully work with TIFF files one often must resort to
specialized and fairly expensive software, such as
litigation' software. Adobe Acrobat
publishing software can convert TIFF files into PDF files. See Adobe
Acrobat Standard 6: Classroom in a Book
107-109 Adobe Systems Inc.
about TIFF files
Sample Motion for Sanctions for Failure to
The following is a discussion from one of the author's briefs in
support of a successful motion for sanctions for failure to produce
accurate and complete electronic evidence.
A court may impose such sanctions "as are just" under F.R.C.P. 37(d)
without any showing of willfulness. As the Notes of the Advisory
Committee to F.R.C.P. 37(d) make clear, "[m]any courts have imposed
sanctions without referring to willfulness," noting that even a
negligent failure may come within the ambit of F.R.C.P. 37(d). In the
case of EEOC v. Sears & Roebuck, 114 F.R.D. 615 (D. Ill.
1985), the court found that a party had tendered outdated and incomplete
computer printouts to a party in response to a request to produce
through negligence. The court in that case stated:
"This court finds that [the] EEOC negligently tendered to Sears
incomplete, outdated and misleading data in response to a clear
discovery request. Sears could not have discovered, and did not
discover, the problem with the tendered computer printouts until after
it had analyzed the printouts ... Under Rule 37(d), a court may
impose various sanctions for such a failure to comply with a discovery
request, including dismissal of the action, where appropriate."
Id. at 627.
The fact that a written response to requests has been made by a party
does not obviate the imposition of sanctions where incorrect, incomplete
or misleading data has been supplied to a requesting party. Id.
Parties are required to respond to requests to produce in a complete
and accurate fashion. See, e.g., Haney v. Woodward & Lothro,
Inc., 330 F.2d 940 (4th Cir. 1964); Penthouse Int'l
Ltd. v. Playboy Enters. Inc., 86 F.R.D. 396 (S.D.N.Y. 1980);
United States v. International Bus. Mach. Corp., F.R.D. 97
(S.D.N.Y. 1977); Milner v. National Sch. of Health Tech., 73
F.R.D. 628, 632 (E.D. Penn. 1977); Hunter v. International Systs.
& Controls 'orp., 56 F.R.D. 617 (W.D. Mo. 1972).
This in turn requires that parties take reasonable steps to ensure
that their responses to requests to produce are complete and accurate.
See Allen Pen Co. v. Springfield Photo Mount Co., 653 F.2d 17,
23 (1st Cir. 1981); Tavoulareas v. Piro, 93 F.R.D. 11, 20-21
(D. D.C. 1981); Litton Systems Inc. v. American Tel. & Tel.
Co., 90 F.R.D. 410 (S.D.N.Y. 1981); In re "Agent Orange" Prod.
Liab. Litig., 506 F. Supp. 750, 751 (E.D.N.Y. 1980); Exxon
Corp. v. FTC, 466 F. Supp. 1088 (D. D.C. 1978), aff'd, 213
U.S. App. D.C. 356, 663 F.2d 120 (D.C. Cir. 1980); Fisher v. Harris,
Upham & Co., 61 F.R.D. 447, 450-51 (S.D.N.Y.
Once a failure to comply with the discovery rules is established,
sanctions are appropriate; the degree of culpability is only a factor in
determining the severity of the sanctions to be applied. See, e.g.,
Societe Internationale Pour Participations Industrielles et
Commerciales, S.A. v. Rogers, 357 U.S. 197, 207-08 (1958).
Thus, a failure to make discovery, even if occasioned by simple
negligence, may justify the imposition of sanctions. See Compagnie
des Bauxites de Guinea v. Insurance Co. of N. Am., 651 F.2d 877,
885 (3d Cir. 1981); Marquis v. Chrysler Corp., 577
F.2d 624, 642 (2d Cir. 1978); David v. Hooker Ltd.,
560 F.2d 412, 418-20 (9th Cir. 1977).
Ultimate production of the material in question does not absolve a
party where it has failed to produce the material in a timely fashion.
Ohio v. Arthur Andersen & Co., 570 F.2d 1370, 1374 (10th