[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
In Li v. Merck & Co., Inc., 2025 WL 429013 (N.D. Cal. Feb. 7, 2025), the court addressed a number of discovery disputes in this lawsuit by a terminated employee against her former employer.
Prior blogs on Li are posted at Consulting an Attorney Did Not Trigger the Duty to Preserve and Spoliation Discovery Permitted.
“Document unitization” is the issue presented when a number of separate documents are presented as a single file, without natural breaks. If, for example, four separate documents are scanned as a single PDF, a search “hit” on any one of them will return all four of them, resulting in false positives that are a waste of time and resources.
The term also applies to the opposite situation – where a single document is presented as multiple files. For example, a ten-page document may be produced as ten separate, single-page, files.
“Proper document unitization maintains the organizational structure of the original documents. It is logical and facilitates use in litigation support platforms. Improper unitization – jumbling a bunch of unrelated documents as a single large PDF – is an unsound practice.” Document Unitization (Aug. 10, 2021).
There are technological solutions to unitization problems. Some litigation review platforms “can be used to split an imaged document into multiple child documents.” Document unitization – RelativityOne. Platforms can also unitize, or join, documents that should have been joined but instead were produced in single-page format. “Unitization will pull the images together as a complete document….” Disco FAQ.
The Li court addressed a document unitization problem, writing:
Defendants argue that Plaintiff has produced documents in an improper fashion, such as “PDF files that are hundreds of pages long, in which documents are randomly thrown together with no organization,” and that documents were not produced in a usable form, such as lacking metadata, dates, and sender and recipient information. Defendants say this is a pervasive problem in Plaintiff’s document production…. Plaintiff denies this and says “Plaintiff’s counsel followed their usual practice which is to produce documents in text-searchable PDF format.”
Li v. Merck & Co., Inc., 2025 WL 429013 (N.D. Cal. Feb. 7, 2025).
The court resolved the issue by sampling:
While the Court does not want to review Plaintiff’s entire document production, the Court would like to see a demonstration that the problems Defendants have identified are pervasive and that the issue is not just a couple of unfortunate examples.
Li v. Merck & Co., Inc., 2025 WL 429013 (N.D. Cal. Feb. 7, 2025).
Accordingly, the Court ORDERS Defendants to file 200 to 300 pages of Plaintiff’s produced documents, in the form produced by Plaintiff, that illustrate the problems Defendants see in her document production.
Li v. Merck & Co., Inc., 2025 WL 429013 (N.D. Cal. Feb. 7, 2025).
It is interesting that the court did not call for a simple random sample and, instead, directed a sample selected by the complaining litigant.
Document unitization is an issue that could be addressed in a Rule 26(f) conference of the parties and an ESI Protocol. For example: “If a scanned document is more than one page, the unitization of the document and any attachments shall be maintained as it/they existed in the original. Documents should be logically unitized (i.e., distinct documents shall not be merged into a single record, and single documents shall not be split into multiple records, if possible) and be produced in the order in which they are kept in the usual course of business.”
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