What is a Document? (Part III)

Fed.R.Civ.P. 34 authorizes discovery of “any designated documents or electronically stored information….” That Rule is limited to the scope of discovery set out in Rule 26(b)(“matter that is relevant to any party’s claim or defense and proportional ….”); see Md. Rules 2-402 and 2-422.

In a prior post, I addressed What is a “Document?” in the context of text bubbles[1] and hyperlinked documents.[2] I pointed to evidentiary issues that may arise from too narrow a definition during discovery.

I next posed the same question regarding formulas in cells of spreadsheets, because the formulas are not shown in the static form of a spreadsheet, i.e., PDF or paper.  What is a Document? (Part II).  This presents evidentiary issues of fairness to witnesses in depositions and at trial.

In this blog, the same question is posed in the context of Excel workbooks that contain multiple worksheets, and multi-content electronic files, such as Adobe portfolios.

It has been suggested that: “E-discovery is still discovery. … The same basic discovery principles that worked for the Flintstones still work for the Jetsons.”  DR Distributors, LLC v. 21 Century Smoking, Inc., 513 F. Supp. 3d 839, 923 (N.D. Ill. 2021).  Thus:

The Court pauses here for a moment to calm down litigators less familiar with ESI. (You know who you are.) In life, there are many things to be scared of, including, but not limited to, spiders, sharks, and clowns – definitely clowns, even Fizbo. ESI is not something to be scared of. The same is true for all the terms and jargon related to ESI. Discovery of ESI is still discovery, governed by the same Federal Rules of Civil Procedure as all other civil discovery.

City of Rockford v. Mallinckrodt ARD Inc., 326 F.R.D. 489, 492 (N.D. Ill. 2018).

However, ESI presents unique issues.  For example, in Corker v. Costco Wholesale, 2020 WL 1987060 (W.D. Wash. Apr. 27, 2020), the court considered how to apply these concepts to electronic documents that are internally separate.

In Corker, although the court was primarily discussing redaction, it recognized that an Excel workbook may, or may not, be a single document:

While spreadsheets are considered a single “document” under the discovery rules, they are often designed to pivot, storing vast quantities of information regarding disparate business ventures, product lines, marketing outlets, etc.…  Stated differently, some electronic documents are multi-volume with internally separate sections.  [citations and quotes omitted].

Corker cited Evon v. Law Offs. of Sidney Mickell, 2010 WL 455476, at *2 n. 1(E.D. Cal. Feb. 3, 2010).

Evon recognized that a single electronic file may contain multiple documents.  There, the court wrote that “where a specific document is very large, and separated by clearly marked designations, or separate volumes, each section/volume becomes, more or less, a document in itself.”

Evon also recognized the flip side – – that separate sections of a single electronic file may constitute a single document: “However, generally worded sections of the large document may apply to specific sections whose potential relevance is unquestioned. Thus, unless a particular section unmistakably has no relevance whatsoever to the allegations in a complaint or denials/defenses in an answer, it should be produced along with the other relevant sections.” [emphasis added].[3]

This presents a fact-sensitive standard.  Under Evon, if “a document is an integral document which is not separated by express designations the entire document must be produced….”  Cf. Baird v. BlackRock Institutional Tr. Co., N.A., 2019 WL 914127, at *2 (N.D. Cal. Feb. 25, 2019)(accepting representation that three extracted pages were stand-alone documents that were part of a larger compilation and remainder need not be produced).

Factually, the question of an integrated or separated document may arise in multiple electronic contexts.  Consider, for example, a salesperson’s Excel workbook that has a large number of different worksheets for different clients, products, or promotions, all saved in a single electronic file.  Or, consider a PDF portfolio, that:

contains multiple files assembled into an integrated PDF unit. The files in a PDF Portfolio can be in a wide range of file types created in different applications. For example, a PDF Portfolio can include text documents, e-mail messages, spreadsheets, CAD drawings, and PowerPoint presentations. The original files retain their individual identities but are assembled into one PDF Portfolio file.

Adobe, Overview of PDF Portfolios (adobe.com).  To the same effect, a single MicroSoft OneNote Notebook may have different sections, relating to entirely different matters, stored in a single electronic file.  Similarly, Slack may contain different “channels” relating to different projects.  Beyond Email – Slack, “Channels,” and Expert Testimony.[4]

In these contexts, what is the “document?” Academicians, librarians, and information scientists have posed the question.  Michael K. Buckland, “What is a ‘Document’?,” J. Amer Society for Information Science (Sept. 1997);  Michael J. Buckland, “Documentality Beyond Documents,” 97 Monist 179, 179 (Apr. 2014).

Mr. Buckland explains that “’document’ was used for oral communications, lessons, warnings, and, more generally, whatever is concerned with evidence or had an instructive effect.”  For example, Suzanne Dupuy-Briet equated “‘document’ with organized physical evidence” or “evidence in support of a fact.”  Id.

The academic debate was apparently unsettled and Mr. Buckland states that: “New digital technology renews old questions and also old confusions between medium, message, and meaning.”

• One of Dupuy-Briet’s defining factors is: “The object is perceived to be a document.”
• Frits Donker Duyvis wrote that: “A document is the repository of an expressed thought.”

Id. at 806.[5]

These concepts could provide a functional and structural paradigm to apply to ESI.  If a salesperson has one Excel workbook with fifteen worksheets for different customers, and if a lawsuit pertains only to customer number 1, the decision of what constitutes the “document” should be easy.  The other fourteen worksheets are functionally and structurally not integrated with the single worksheet at issue.  A closer question may be presented if all fifteen customers were in different areas on a single worksheet; however, the same result should likely be reached.  If all fifteen customers were commingled in adjoining columns using the same formulas, however, a different result may be appropriate.

The best solution to the question “what is the document?,” would be achieved through cooperation and a Fed.R.Civ.P. 26(f) conference of the parties.  As suggested in the redaction context: “Procedural rules provide two potential solutions to this dilemma: (1) a conference of the parties to reach an agreement; and, (2) a motion for a protective order in the absence of an agreement.”  See Relevance Redactions Rejected – Rule 26(f) Resolution. A producing party could tell the requesting opponent that Joe’s spreadsheet contains fourteen customers who are unrelated to the issues of the case.  The producing party could offer to produce the related worksheet and provide some information regarding those that are not provided.  If the recipient believed that the sheets that were not produced were relevant, it could then ask for them and an informed decision could be made.

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[1] Sandoz v. Un. Therapeutics Corp., 2021 WL 2453142 (D.N.J. Jun. 16, 2021).

[2] Nichols v. Noom, Inc., 2021 WL 948646 (S.D.N.Y. Mar. 11, 2021).

[3] See Engage Healthcare Commc’ns, LLC v. Intellisphere, LLC, No. 2017 WL 3624262, at *5 (D.N.J. Apr. 26, 2017)(quoting Evon), report and recommendation adopted,  2017 WL 3668391 (D.N.J. Aug. 23, 2017); David v. Alphin, No. 3:07CV11, 2010 WL 1404722, at *7 (W.D.N.C. Mar. 30, 2010) (same).

[4] These examples are illustrative, not exhaustive.  For example, a PST file exported from Microsoft Outlook could contain emails and attachments from multiple unrelated matters in a single file.

[5] Black’s Law Dictionary (11^th ed. 2019) defines “document” as “[s]omething tangible on which words, symbols, or marks are recorded. See Fed. R. Civ. P. 34(a). Most traditionally, of course, the term embraced any piece of paper with information on it. Today the term also embraces any information stored on a computer, electronic storage device, or any other medium….The deeds, agreements, title papers, letters, receipts, and other written instruments used to prove a fact.”

“The definition of a discoverable ‘document’ found in Rule 34(a) and referred to throughout the Rules weathered sixty years of technological change, but by the turn of the millennium it was being stretched to the limit. In the paper world, a document could be defined in easily understood, tangible terms— a piece of paper, a drawing, a chart, a film, and so forth. But in the electronic world, documents appear in a variety of manifestations. The same electronic file can be printed out on paper, imaged, burned onto a CD, migrated to microfiche, or rendered in an endless number of media. Each manifestation of the file can vary in appearance or convey different information. These facts gave rise to disputes over what the appropriate form of production should be. In addition to appearing in different forms, some electronic ‘documents,’ such as dynamic databases, defied all description in reference to Rule 34.”  Kenneth J. Withers, “Two Tiers and a Safe Harbor: The Electronic Discovery Amendments to the Federal Rules of Civil Procedure.” 51 Fed. Lawyer 29, 2004 WL 2800780 , 6.