Poster Child of Non-cooperation

In a recent posting on a listserv, a user posted the following question:

I have a Project file that needs to go opposing counsel. They have not asked for any native format, but what is the best format to send it in? TIFF? or PDF? Thanks for your help.

In response, one user said:

Not to start a big "brew-ha-ha" but, I disagree w/ all of the replies saying to send your file in PDF format. As someone who works in a law firm, I can tell you that the golden rule for associates during the fact discovery phase is to NEVER make it easy for opposing counsel to review anything. Meaning, send it to them in a non-searchable format like TIF (if your client doesn't mind paying for the processing). Regarding PDF format, even if you were to send it in non-searchable format, that would essentially be useless if they use Adobe Professional, which of course most firms do use. They could make it searchable within minutes.
 
So, you should send them a load file with the document boundaries along with the related TIF images, and that's it. It doesn't need to have the original pretty colors, etc.

Later, in response to an objection posed by another user to this type of conduct the non-cooperative user replied:

If the parties didn't agree to format in the beginning after the complaint was filed, then there's nothing to explain! Obviously in this case, there was no agreed upon format for productions, which is why she posted the question with choices.
 
FYI: Document dumps with no searching capabilities is as old as ESI itself. The objective is to wear down the other side. This approach is about gaining advantage, not about morals.

I disagree.  I think a "big 'brew-ha-ha'" should be started. 

Comments

[Ralph Losey]

This kind of attitude is contrary to the Rules of Procedure and the Rules of Professional Conduct. If you have any doubt about that read Judge Grimm's decision in Mancia v. Mayflower Textile Services Co., Civ. No. 1:08-CV-00273-CCB (D. Md. October 15, 2008). It is also one of the reasons why e-discovery costs are so high.

Shame on the law firms who follow such practices, and shame on those who "just follow orders." In many states if you learn of such misconduct, you have a duty to report it to the Bar's disciplinary committee for investigation.

[Tom O'Connor]

What is most surprising to me is not that the original poster on this thread is ignorant of both the history of the FRCP changes around e-discovery and current case law (despite the fact he professes on his web site to have "... familiarity ..." with both the rules and " ... current electronic discovery practices.") but that when experienced attorneys point out where he might be wrong he treats them like naive academics who are oblivious to the way the "real world" works.

I suppose we can write this off to the fact that he is techie and not an attorney but given his first hand description of what he calls "common practice" in discovery and his background working at Big Law, it seems as though the lessons of Qualcomm are not yet being learned. Perhaps if IT staff were sanctioned as well ....

I completely agree with Michael and second Ralphs opinion: read the Mancia decision.