More and more the Litigation Support Database (LSD) is a staple of today’s trial practice.  It not only contains the full measure of a litigant’s evidential arsenal, it can represent a considerable investment in time and effort.

Rather than simply receiving the raw data produced by an opposing party and then duplicating work already done, there is considerable benefit in leveraging off an opponent’s LSD.

Furthermore, obtaining the LSD can eliminate many of the discovery disputes about data format, metadata and the like.

Interestingly, many have recognized the benefits of obtaining the opponent’s LSD.  As a result, there are numerous Court decisions addressing this issue that find both for and against their production.

The decisions finding against the production of LSDs have generally followed a work product defense on various grounds.

Some have refused production on the ground that a lawyer’s mental impressions were integrally intertwined within the LSD such that production without revealing the lawyer’s mental impressions, theories and thought processes was impossible.  (Shipes v Bic Corp., 154 F.R.D. 301, (M.D. Ga. 1994))

Others have refused production claiming that the selection and grouping of documents could reveal strategy.  (Sporck v Peil, 759 F.2d 312, 316 (3d Cir. 1985))

On the other side, numerous courts have granted requests for the production of  the opposing side’s LSD under the theory that they are nothing more than computerized repositories of discoverable information.

In one case, the court opined that a document cannot achieve work product status simply by transferring it from the client to its lawyer. (Scovish v The Upjohn Co., 1995 WL 731755, (Conn Super. Ct. Nov 22, 1995))

In another case, the Court denied protection reasoning that, at least in large document collections, a lawyer’s theories and mental impressions are not discernable and no more protectable than they are in interrogatories, request for admission, or witness lists.  (Miller v Holzmann, 239 F.R.D. 30 (D.D.C. 2006))

In the end, while some data within an LSD are protectable, other data are not.  For example, the tagging of database records as deposition exhibits could fall into a work product exemption.  By contrast, a document’s name, bates number, date, sender, recipient, searchable text, and extracted metadata, would likely not.

Equally important is that extracting the  data and segregating it from privileged data is easily accomplished.   After all, to be useful to anyone the data must be organized so that it can be retrieved.  It is the organization of the data for retrieval that so easily allows its redaction. 

When viewed in this fashion the absurdity of the “intertwined impressions” argument becomes obvious.  In order for impression data to be so intertwined with discoverable data that redaction is impossible, the LSD would have to be totally unorganized and utterly useless. 

Besides their design attributes, the database systems themselves facilitate production.  Concordance, for example, provides an extract feature where selected fields can be exported from the database system so that they can be loaded into other database applications.  The same can be said for other systems like Summation and Ringtail.  Both of these latter systems leverage off of commercially available database systems like SQL Server. 

Despite the appeal and capability of obtaining an opponent’s LSD, it may still not be suitable for all situations.  For example, it is probably most attractive for defendants who need to quickly catch-up to a plaintiff’s preparation.  It is also useful for anyone wishing to cut discovery costs.  Of course, it is also essential that the adversary have the skill to create an LSD worth requesting.

Is there any real difference in obtaining data with a load file than obtaining the entire LSD? Potentially, Yes. 

It is easy to design load files that are subsets of the LSD.  The differences could easily be by design to limit the data’s usefulness to an opponent or to eliminate seemingly irrelevant data.

The lesson is that if parties agree to swap load files that they may want to review the data structures of each others LSD and stipulate that all but certain fields are part of the exchange.  If one side objects claiming work product, the other should realize the actual limits of that defense.

§§§

Gregory Fordham has written extensively on this subject.  His papers are available for download from the K&F website  www.knfcon.com.  He regularly advises clients on how to structure their e-discovery plans in order to minimize cost and maximize return.  The Georgia Bar has approved his e-discovery presentation for CLE credit.  He has been an expert witness in state and federal cases involving e-discovery and computer forensics.  His e-mail is greg@knfcon.com