It is not uncommon, in the litigation of a federal construction claim, for the Government to produce gigabytes of electronic data, amounting to thousands and thousands of documents, in response to a motion for the production of documents.  Frequently, these “electronic” documents are simply the scanned versions of paper files in the Government’s offices.  In the scanning process, extensive duplication occurs and documents that are clearly separate in paper file folders are scanned together in a manner that often combines multiple documents.  Once combining occurs, it is very difficult for the recipient of the electronic information to tell where one document ends and the next one begins.  Documents and their attachments become confused, are re-arranged, and difficult to follow. 

EDiscovery Laptop

The rules require that documents are to be unitized, meaning that they are scanned into separate and discreet electronic documents that match the original paper versions.  I am not suggesting that the Government intentionally fails to unitize files for production, but when thousands of pages are scanned the resulting combination of individual files is inevitable.  It is particularly disturbing when an entire file folder is scanned as one document, leaving it up to the recipient to try to figure out where one document ends and the next one begins.

The problem is rooted in the fact that there is not always consistency among various offices within a Government agency, or among individuals within an agency, in the maintenance and filing of information.  Many people routinely print documents that were created on a computer and keep them in organized physical file folders.  While the electronic document is still on that person’s computer, it may be buried in a root directory or in a directory of miscellaneous files that are not limited to a particular project or issue.  In those cases, the individual is more likely to be able to quickly retrieve the hardcopy than the electronic version of the document.  It is this lack of centralization and consistency that accounts for the fact that government agencies, when faced with a demand for the production of documents, face an enormous task in locating those documents.  This also explains why government agencies often find it expedient to scan the hardcopies that have been maintained by various individuals within the agency, rather than locating and producing the native electronic versions.  To my way of thinking, however, the rules regarding the disclosure of Electronically Stored Information (“ESI”) are not intended to encourage the creation of electronic data that comes from the scanned hardcopies of documents.  If a document that was created natively in a program like MS Word, Exel, or PowerPoint, is printed, scanned, and produced in an Adobe PDF format, that does not qualify as the production of ESI.

In the pre-electronic era, which really was not that long ago, paper documents were routinely made available.  Typically, a Government agency would allow a contractor’s attorney to inspect the documents, which were stored in file cabinets and banker boxes, and select the ones the attorney wanted to have copied.  This was a time-consuming process that usually involved travel and a considerable time lapse before the selected documents were copied and furnished.  In addition, the government attorney knew exactly which documents the contractor’s counsel found interesting and made a copy for the government’s use as well.  That being said, in many cases it was nevertheless a faster and better process.

An attorney who is experienced in the government’s recordkeeping system can look at file drawers, boxes, and file folders and quickly eliminate those that are unlikely to have useful, or relevant information.  That attorney will also be able to zero-in on those documents that have a high potential of being relevant because of how they are filed and how they physically appear.  It is not always necessary to read each individual document, but entire file folders that are deemed likely to contain relevant information can be tagged for copying and reviewed more carefully later when the copies are furnished.  In the long run, it is less expensive, faster, and more likely to facilitate the selection of relevant information than the current  practice of providing electronic “data dumps” to the other side.

You need sophisticated computer software to remove duplicates among thousands of electronic documents, to predictively code those documents based on selected search terms to narrow down the amount of data, and ultimately to tag those documents by person and issue to facilitate later search and retrieval.  Obviously, that is a process that can be performed much more quickly by a computer than a human being, but what I am lamenting is the fact that we have created an electronic data system that effectively requires us to analyze documents that way.

I realize the email must be produced electronically, since it was created electronically.  In fact, it is very disturbing when a government agency prints its email messages and then scans the hardcopies to created electronic files (usually PDF files) for production to the other side.  This process strips the metadata that would be found in the original electronic version and violates the rules governing the production of ESI.  Without question, any information, whether it consists of email, CAD files, projects schedules, etc., should be produced in its native electronic form.  If information is stored in hardcopy format by the government and must be scanned in order to create electronic information for production, I believe that the contractor’s attorney should be given the option of inspecting the hardcopies to determine which, if any, of those documents should be scanned and produced.  In my experience, this is a good way to speed up the process and to eliminate the volume of information that is ultimately produced.

The bottom line is that if the information, even though it was created on a computer, is stored in hardcopy and regularly accessed that way by government personnel, the contractor’s attorney should be given the opportunity to inspect those hardcopy files before they are scanned en masse. Email, however, which has become the preferred method of business communication, should always be produced in its native electronic format.

Michael H. Payne is the Chairman of the firm’s Federal Contracting Practice Group and, together with other experienced members of the group, frequently advises contractors on federal contracting matters including bid protests, claims and appeals, procurement issues, small business issues, and dispute resolution.