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Brad Jenkins

Brad Jenkins, President and CEO of CloudNine Discovery, has over 20 years of experience leading customer focused companies in the litigation support arena. Brad has authored many articles on litigation support issues, and has spoken before national audiences on document management practices and solutions.

Doug Austin

Doug Austin, Professional Services Manager for CloudNine Discovery, has over 20 years experience providing legal technology consulting and technical project management services to numerous commercial and government clients. Doug has also authored several articles on eDiscovery best practices.

Jane Gennarelli

Jane Gennarelli is a principal of Magellan’s Law Corporation and has been assisting litigators in effectively handling discovery materials for over 30 years. She authored the company’s Best Practices in a Box™ content product and assists firms in applying technology to document handling tasks. She is a known expert and often does webinars and presentations for litigation support professionals around the country. Jane can be reached by email at jane@litigationbestpractices.com.

Are You Requesting the Best Production Format for Your Case? – eDiscovery Best Practices

October 15, 2012

By Doug Austin

 

One of the blogs I read regularly is Ball in your Court from Craig Ball, a previous thought leader interviewee on this blog.  His post from last Tuesday, Are They Trying to Screw Me?, is one that all attorneys that request ESI productions should read.

Ball describes a fairly typical proposed production format, as follows:

“Documents will be produced as single page TIFF files with multi-page extracted text or OCR.  We will furnish delimited IPRO or Opticon load files and will later identify fielded information we plan to exchange.”

Then, he asks the question: “Are they trying to screw you?”  Answer: “Probably not.”  But, “Are you screwing yourself by accepting the proposed form of production?  Yes, probably.”

With regard to producing TIFF files, Ball notes that “Converting a native document to TIFF images is lobotomizing the document.”  The TIFF image is devoid of any of the metadata that provides valuable information about the way in which the document was used, making analysis of the produced documents a much more difficult effort.  Ball sums up TIFF productions by saying “Think of a TIFF as a PDF’s retarded little brother.  I mean no offense by that, but TIFFs are not just differently abled; they are severely handicapped.  Not born that way, but lamed and maimed on purpose.  The other side downgrades what they give you, making it harder to use and stripping it of potentially-probative content.”

Opposing counsel isn’t trying to screw you with a TIFF production.  They just do it because they always provide it that way.  And, you accept it that way because you’ve always accepted it that way.  Ball notes that “You may accept the screwed up proposal because, even if the data is less useful and incomplete, you won’t have to evolve.  You’ll pull the TIFF images into your browser and painstakingly read them one-by-one, just like good ol’ paper; all-the-while telling yourself that what you didn’t get probably wasn’t that important and promising yourself that next time, you’ll hold out for the good stuff—the native stuff.”

We recently ran a blog series called First Pass Review – Of Your Opponent’s Data.  In that series, we discussed how useful that Early Data Assessment/FirstPass Review applications can be in reviewing your opponent’s produced ESI.  At CloudNine Discovery, we use FirstPass®, powered by Venio FPR™ for first pass review – it provides a number of mechanisms that are useful in analyzing your opponent’s produced data.  Capabilities like email analytics and message thread analysis (where missing emails in threads can be identified), synonym searching, fuzzy searching and domain categorization are quite useful in developing an understanding of your opponents production.  However, these mechanisms are only as useful as the data they’re analyzing.  Email analytics, message thread analysis and domain categorization are driven by metadata, so they are useless on TIFF/OCR/data productions.  You can’t analyze what you don’t have.

It’s time to evolve.  To get the most information out of your opponent’s production, you need to request the production in native format.  Opponents are probably not trying to screw you by producing in TIFF format, but you are screwing yourself if you decide to accept it in that format.

So, what do you think?  Do you request native productions from your opponents?  If not, why not?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
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Comments

  • October 17, 2012 Jon Zak

    Over the past several years, parties have also requested so-called "quasi-native" productions. It gives them the best of both worlds - for a record, they would get a tiff image, searchable text and the native file joined by a doclink in the load file.

    They may also request native files for documents that don't tiff well (i.e. Excel spreadsheets, Access databases etc).

    Good article!

  • October 15, 2012 Doug Austin

    Question: When the producing party claims "unduly burdensome or expensive...to review for privileged and/or protected material", are they required to provide an explanation as to WHY it is "unduly burdensome and expensive"? Because, as Craig noted, there is cost to convert the ESI, so it would seem as though producing as TIFF would be more expensive, not less. I'm not an attorney, so I'm asking what the attorneys have typically seen in responses like this as to explanation or justification for producing converted instead of native formats.

  • October 15, 2012 Sandra Burch

    Oh how I wish I could say some of that out loud :)

  • October 15, 2012 Craig Ball

    Dear Ms. Burch:

    Great point!

    Let's look at "wish I could say that" rejoinders:

    They say, "[S]such production would be unduly burdensome or expensive for Plaintiff to review for privileged and/or protected material...."

    We say:

    -Except the native form is the form your client uses--by choice--every day, and in assessing burden you don't factor in the the elimination of much of the cost and burden of producing ESI without the need to convert it to a downgraded form.

    -Except that you don't produce all of the same content when you downgrade the form. Instead, you simply destroy it through the TIFF conversion process and disingenuously pretend it was never there. We weren't entitled to erase marginalia from paper documents just because we'd rather not review it, so why does anyone expect we are entitled to strip comments from Word documents just so we don't have to use a tool that displays comments and tracked changes?

    -If you (plaintiffs' counsel) are undertaking a native review by using the native applications, you are so utterly clueless about e-discovery and its risks and benefits that, in fairness to your client, you shouldn't be seeking a seat at the table in any e-discovery decisions. If you can't help fight the fire, how about getting your fat ass off the hose?

    -Just because you're paying to have all the documents translated into a language you need to get by (Neanderthal), why does that mean that I can't read them in the language in which they were written and which your client and I speak?

    -I understand that your lack of skill, knowledge and proper tools is your handicap and that accommodations are required for you. But I am not similarly handicapped. While I'm content for you to get the material in a Braille that allows you to read it, your limitations should not serve to deprive me of the chance to read it in the original form that is more accessible and less burdensome to me. After all, you are handicapped by choice, not by misfortune. You could take off the blindfold and see again.

  • October 15, 2012 Sandra Burch

    We ask, but are routinely faced with responses such as the one below. Very frustrating for those of us who are trying to move forward.

    Plaintiff objects to the Subpoena to Produce Documents' demand that
    electronically stored information be produced in native format to the extent that such production would be unduly burdensome or expensive for Plaintiff to review for privileged and/or protected material and to the extent that producing such information in a reasonably useable electronic format or as a hard copy would be less burdensome to and expensive for Plaintiff.

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