An excel-lent guest post from Josh Gilliland, of Bow Tie Law, about Lawrence v. VB Project, LLC and ediscovery data in spreadsheets:
Many litigation support professionals think Excel files are the bane of discovery. Attorneys with a fixation on wanting a Bates Stamp on electronically stored information demand Excel files be converted from their native application to a static image, causing one Excel file to explode into a 500 page PDF.
Case in point: The Producing Party produced a Microsoft Excel spreadsheet that the Requesting Party could not open. The two opposing paralegals exchanged emails, one asking for the Excel to be re-produced in PDF format. The Producing Party’s paralegal said he could re-produce the Excel as a PDF, but would need a couple days to work it into his schedule. As one can imagine from the following motion practice, the Excel was not re-produced as a PDF. 1
The Requesting Party brought a motion to compel the production of the Excel file as a PDF or hard copy. The Court ultimately found for the Requesting Party, because even though the Producing Party could produce the Excel files as the form the ESI is normally maintained under Federal Rule of Civil Procedure 34(b)(2)(E)(ii), that requires the Requesting Party be able to open the native file. The Court stated that the failure to produce a file that could be opened was “tantamount to a failure to produce.”2 As the Court noted about document review:3
Moreover, it is not lost on the Court that simple courtesy could have resolved this dispute and avoided court involvement in this matter. Indeed, all that Plaintiff had to do was hit the “Print” button on its computer and then mail hard copies of the documents to Defendant.
The Court ordered the re-production of the Excel file, all of which could have been avoided with producing a file that the requesting side could open.
Bow Tie Law Thoughts:
Cases like this one should not happen. Excel files should be produced in native file format, without conversion into static images or paper that causes an unreadable mess of data. As Magistrate Judge John M. Facciola once said:4
Understandably, taking an electronic document such as a spreadsheet, printing it, cutting it up, and telling one’s opponent to paste it back together again, when the electronic document can be produced with a keystroke is madness in the world in which we live.
Recognizing the pervasiveness of this problem, Everlaw has built a custom Spreadsheet Viewer to give Everlaw users the ability to review Excel files exactly as they would appear in the native application. Users can analyze formulas, view charts and graphs, and navigate without unnecessary added pagination, all right in their web browser and without having to load the native application.
Document reviewers can further search contents of individual Excel files with a search bar for keywords. “Hits” for the search will be highlighted in yellow.
Spreadsheet cells and dependent cells can be redacted in Everlaw by selecting the privileged area with the redaction tool. A confidentiality designation can be added to explain the privilege. In the case the value of a cell is used to calculate the value of another cell based on a formula (thus a dependent cell), reviewers have the option to redact the cell completely, replace the cell with a formula, or keep the original value of the cell. A native file can be produced with the applied redactions in .xlsx format.
Everlaw’s Spreadsheet Viewer empowers lawyers to understand the data inside of spreadsheets. Attorneys cannot look at a PDF of an Excel file and know what formulas created the results in each cell. With the Spreadsheet Viewer, you can validate results by testing formulas, search for keywords, and not be stuck analyzing dynamic data as a static image.
1 Lawrence v. VB Project, LLC, 2014 U.S. Dist. LEXIS 128018 (S.D. Fla. Sept. 12, 2014).
2 Lawrence, at *5.
3 Lawrence, at *6.
4 Magistrate Judge John M. Facciola, Covad Communs. Co. v. Revonet, Inc., Covad Communs. Co. v. Revonet, Inc., 260 F.R.D. 5 (D.D.C.2009).