Page 16 - November 2019 BarJournal

FEATUREBUSINESS LITAGATION

know-how, in Excel. Nonetheless, one should HOW TO SATISFY CIV.R. 34(B)(2)’S plaintiff to either re-produce its ESI in
use eDiscovery software to generate an imaged “USUAL COURSE” REQUIREMENT native arranged by custodian or supplement
production to substantially preserve native Regardless of form(s) chosen, Civ.R. 34(B) its prior non-native productions with an
ESI’s appearance and searchability consistent (2) also requires the responding party to index). Often overlooked by attorneys, the
with Civ.R. 34. (eDiscovery software largely organize its production either “as kept in the metadata index “may be the nearest thing
automates this process and is within reach usual course” or “labeled to correspond with approaching a ‘magic decoder ring’ ” in
of every litigator. Cleveland-area attorney the categories in the request.” Producing a modern discovery. Id. The index enables
Brett Burney posted an eDiscovery software mass of undifferentiated files violates Civ.R. a savvy attorney to distinguish, within
guide for solo to mid-size law firms at www. 34. Total Quality Logistics at *9. A party that minutes, a “document dump” from an
ediscoverybuyersguide.com.) opted to produce “in the usual course” bears evidentiary goldmine. One can leverage
the burden of establishing it actually did so. the index to: identify key custodians,
Id. Mere assertions are not enough; the party communications, and time periods in a
must “organize its production in such a way as production; prioritize review of documents
to enable the requesting party to substantially likely to be important; and challenge (or
replicate the system used by the producing rebut alleged) discovery abuses. Thus, by
party[.]” Id. Parties that fail to meet this burden producing an index the responding party
may be forced instead to identify how each usually has no further duty under Civ.R. 34
document produced corresponds with the to organize its production. See id.
requests for production. See id at *10 (citing
Civ.R. 34(B)(2)); Mauer v. Daimlerchrysler
Corp., Cuyahoga C.P. No. CV-03-512979, 2005 Often overlooked by
WL 6562452 (June 2, 2005).
At a minimum, a “usual course” production attorneys, the metadata
will reflect the custodian(s) or source(s) from index “may be the nearest
whom the documents were obtained. Id at *9. thing approaching a
For example, a party “produces emails in the
usual course when it arranges the responsive ‘magic decoder ring’”
emails by custodian, in chronological in modern discovery.
order and with attachments, if any.” Valeo
v. Electrical Systems, Inc. v. Cleveland Die &
OVER 25 YEARS OF Mfg. Co., E.D.Mich. No. 08-cv-12486, 2009
PERSONAL INJURY, WL 1803216, *2. Similarly, non-email ESI CONCLUSION
MEDICAL MALPRACTICE, should be arranged “by custodian and by the As clients’ use of technology increases in
AND AUTO / TRUCKING file’s location on the hard drive—directory, volume and complexity, so too must attorneys
CASES subdirectory, and filename.” Id. advance their technological understanding
If such organization is not inherent to protect their clients from risk and to get
in the form chosen (as it is with imaged the evidence they need in a manner they
216.223.7535 productions), then the responding party can use. Attorneys following the Civ.R. 34
may satisfy Civ.R. 34(B)(2) by producing
roadmap detailed above can ensure they
ROBENALTLAW.COM a metadata index instead. See id at *2-3; receive discovery in the form(s) and with the
Total Quality Logistics at *13-14 (ordering organization to which they are entitled and,
conversely, produce discovery in a manner
that minimizes time-consuming and costly
discovery disputes and orders.
Guess who’s the fish.. …in the PHISH??

J. Matthew Linehan is an
eDiscovery Attorney at Ulmer &
Berne LLP. With prior experience
in business and employment
litigation, Matthew combines the
litigator’s perspective with specialized technical
Email Phishing can cost you your COMPANY knowledge to provide practical and cost-effective
eDiscovery solutions and strategies for clients.
Call to schedule a Threat Analysis Matthew has been a CMBA member since 2009.
440.892.9997 ● www.msmctech.com He can be reached at (216) 583-7194 or
mlinehan@ulmer.com.

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