Latin: To Bring With You Under Penalty of Punishment
I like being deposed, but then, I've always liked taking tests. Weirdo! Lawyers are notoriously bad witnesses, and I'm probably no exception, but I really like the mental exercise of defending my opinions. After so many years eliciting testimony, it's much more interesting to play from the hot seat. Yesterday's deposition offered some lessons in e-discovery worth sharing.
No lawyer worth his or her salt will notice a deposition without appending a subpoena duces tecum demanding the witness bring documents. The SDT served on me focused on e-mail and telephone communications, so the challenge was how best to produce e-mail threads and call records to a party who'd merely specified that ESI be produced in a "reasonable manner."
I use Gmail for messaging, so all responsive messages were already threaded--a big timesaver in collecting responsive material and an aid to preserving continuity and clarity. But Gmail doesn't support a simple "Save As" feature enabling a user to generate a generic single message format or PST. Of course, I could have downloaded all my messages to Outlook then saved single messages as .eml or .msg files; but, as there would be upwards of 30,000 messages to download, that approach was a non-starter.
I wanted to preserve appearance and full-text searchability. I also had to deal with attachments in about half of the responsive threads, some of which would be in formats (like forensic images) that most lawyers aren't going to ken.
Going in, I don't know how many items will prove responsive to searches; so, it's not a simple matter to simply print the items to paper as I go (assuming they were in formats that could be printed). Little guys like me don't have the high speed, low cost printing resources of large firms. In-house printing of three sets comprising 3,000 to 10,000 pages would be costly, burdensome and time-consuming. Confidentiality concerns made outside printing undesirable. Plus, I view it as essential to preserve electronic searchability for material derived from electronic sources. If I show up with a three foot stack of paper, a savvy lawyer is going to say, "Whoa, Nellie. Paper isn't a reasonable production format for voluminous electronic records." [Texas lawyers say "Whoa, Nellie," unless we rode in to the deposition on a horse of another name. Hence, the frequent references by some to "and the horse you rode in on"].
On the other hand, if I smugly show up with a bunch of native formats--which is my privilege--I'm just making life hard for the party that noticed the deposition. That's not right either (see, e.g., "and the horse you rode in" supra).
So, I opted to produce everything as a PDF Portfolio. A PDF Portfolio is a collection of multiple files in varying formats that are housed in a single, viewable and searchable container. Anything that can't be handled as a PDF is included in its native format and indexed as feasible for instant searching. A PDF Portfolio has most of the benefits of paper but handles all forms of ESI and is easier to search and produce.
While I need Adobe Acrobat 8 or 9 to create a Portfolio (called a "Package" in Acrobat 8), the recipient just needs the ubiquitous, free Acrobat Reader application to open, view and search it. A PDF Portfolio supports a simple browser-style viewer format in Acrobat Reader, so the documents are very quick to peruse.
Here, I need to reiterate the key difference between Adobe Acrobat products that just seems to stymie so many. Adobe gives away a program called Adobe Reader. It reads PDF formats, but it doesn't create them. Repeat: it doesn't create PDFs or Portfolios. It just reads them. It's called "Reader." Why? Because IT DOESN'T CREATE PDFs. It's free, so enjoy what it does, which is read PDFs. Only.
Adobe sells products called Acrobat (so named because you have to perform gymnastics to get people to understand that the Reader product just reads PDFs). The Acrobat products create PDFs, including Portfolios/Packages from Version 8 forward. This is how Adobe makes money: free reader, $300 writer.
To create my Portfolio, I followed a three step process. First, I changed my default printer to the Adobe PDF Printer that comes with Acrobat, then I "printed" every responsive message in Gmail to a PDF format, assigning a unique name to each such file stored in a single production folder. The unique naming of each PDF "printout" was a hassle necessitated by Gmail's failure to assign different names to each item in printing, but it wasn't a huge hassle, and I used it as an opportunity to give easy shorthand identifiers to each item. You could use Bates numbers or hash values.
Next, I saved each attachment in its native format to the same folder.
Finally, I selected everything in my production folder and had Adobe Acrobat assemble them into a Portfolio. To dress things up, I even added my logo to the cover page. Acrobat built and embedded a full-text index of contents. All of this step only took a couple of minutes.
Now, I burned CDs for all counsel containing the PDF Portfolio and, as a convenience, the complete contents of the production folder.
I delivered this to counsel at deposition, proud to have made ESI easily accessible, viewable and searchable at low-cost to all. And what do you suppose happened?
Right. They looked at the disk as though I'd handed them a snake and sent it out to be printed while we all twiddled our thumbs with meters running. Sigh.
Lesson: If you're serving a subpoena duces tecum for ESI, take a page from the Federal Rules and specify the form or forms you seek. If you're after costly cumbersome conversion to paper, address who will pay for it. If you need production before the deposition, ask for it. If you're not competent or equipped to handle the evidence production you demanded when it's produced at the time and place you demanded it, then have the courtesy and professionalism to let that be known before you waste everyone's time and every client's money.
For more about Acrobat Portfolios and other great Acrobat tips for lawyers, check out Rick Borstein's terrific blog, "Acrobat for Legal Professionals."