The Ongoing Battle Over How ESI is Produced: eDiscovery Trends, Part Three
Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems. He has also been a great addition to our webinar program, participating with me on several recent webinars. Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Mobile Collection: It’s Not Just for iPhones Anymore. Now, Tom has written another terrific overview regarding mobile device collection titled The Ongoing Battle Over How ESI is Produced that we’re happy to share on the eDiscovery Daily blog. Enjoy! – Doug
Objections to Native File Production and Counter-Arguments
So, what are the objections most commonly raised by producing parties? I’ll discuss the standard objections below and after that I’ll mention some counter arguments to those objections, including several that have been raised recently by renowned eDiscovery expert Craig Ball.
The objections to native file production we see most often are the following:
- The Defense has already created a database containing all documents to be produced (often in related litigation) and retrieval of native files would place an added cost on the producing party.
- Redaction is unduly costly and even impossible with some native files
- It is unduly burdensome and costly to require an entirely new review of relevant documents necessary to produce native files
- Native files cannot be Bates numbered, making them less useful for presentation activities like depositions and trial.
- Federal Rule of Civil Procedure 34 does not specifically call for production in native format
- Image-based productions have been accepted in many courts
- Static images are equally useful for analysis purposes as native files
The response to most of these objections is first that they are not “specific” as required by Rule 34 and second that they are generally untrue. TIFF files are not as useful as native files in that they are not searchable, contain no metadata from the original files and are not at all conducive to the use of TAR or analytics software for searching.
And more specifically, the notes to the FRCP point out that:
[T]he option to produce in a reasonably usable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation. If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.
FRCP Rule 34, Committee Notes on Rules – 2006 Amendment
The latter objection was covered thoroughly by Craig Ball in a blog post of his entitled Degradation: How TIFF+ Disrupts Search. In brief, Craig notes that TIFF load file inaccuracies can reduce accurate searchability (and I routinely see problems in 2/3 of the load files I am asked to investigate, even from large experienced vendors) and further that the suppression of comments or their merger into other portions of text can also severely inhibit accurate searching.
Even more interesting is an analysis Craig performed on the difference in file sizes between TIFF and some standard native files which result in increased costs to requesting parties who will be hosting the documents in a web-based service. In a blog post entitled Don’t Let Plaintiffs’ Lawyers Read This!!, Craig noted that since TIFF images of native files are much larger than the native files and most most eDiscovery service providers are “In the Cloud” and charge by data volume, then a production format that increases data size 15, 20 or 25 times is a violation of the proportionality principle.
Seem far-fetched? Well as Craig notes in his post “let’s do the math” and the math is clear. So clear that one judge in one recent case agreed with him and ordered native file production despite the defendants raising a number of the objections above and disputing Craig’s testimony about file size.
With regard to the objection above raised by producing parties that native files cannot be Bates numbered, making them less useful for depositions, trial and other events where evidence is presented, there is an easy solution to that issue. Most parties that produce native files generate a file level number for each document that is used to track productions at the document level (essentially a document-level Bates number). When it comes time to use some of those documents in evidence, they can be converted to image form and the page numbers can be added as a prefix (e.g., PROD00000123-0001, PROD00000123-0002, etc., where “PROD00000123” references the document-level Bates number that was used to track the documents produced. Keep in mind that only a fraction of the documents produced (often a very small fraction) are used in evidence presentation. Native file productions don’t eliminate the ability to refer to specific pages within documents when presenting evidence.
We’ll publish Part 4 – Conclusions – next Monday.
So, what do you think? Do you prefer image-based productions or native file productions? As always, please share any comments you might have or if you’d like to know more about a particular topic.
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Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.