No Bates Numbers in a Native Production? Get Over It! – eDiscovery Best Practices
October 22, 2012
Last week, we discussed the benefits of requesting document productions in native format, including the ability to use Early Data Assessment/FirstPass Review applications to analyze your opponents produced data and metadata, using capabilities like email analytics and message thread analysis (where missing emails in threads can be identified), synonym searching, fuzzy searching and domain categorization. If you don’t understand the benefits of receiving the underlying metadata, try reviewing an image of an Excel spreadsheet and see if you can understand how the numbers were calculated without the underlying formulas. Not so easy, is it?
However, one objection that attorneys provide against producing documents in native format is that they’re not conducive to Bates labeling. Some native file types, such as Excel files, are not stored in a typical paginated, document-oriented format, so it is difficult or even impossible determine the number of pages for each file. Other file types vary the number of pages and placement of text on pages based on the document styles applied. For example, Word uses document styles based on the fonts installed on the workstation to display the content of the Word document; however, if the chosen font is not available when the document is viewed on another workstation, Word will substitute with another font and style that can change the formatting and even which page content appears. Since attorneys are so used to having a Bates stamp on each page of a document, many are still known to produce (and request production) in an image format, adding costs unnecessarily. Would those same attorneys print out every email in their Inbox before reading them?
However, most courts today accept a file-level “Bates” or Unique Production Identifier (UPI) where each file is named with a prefix and a sequential number. These numbers look just like Bates numbers, except they’re not stamped in the file itself; instead, they are used as the file name. These productions are usually accompanied by a data file, containing metadata for loading into a review tool, which includes the original file name and path of each file being produced.
So, how do you get around the issue of referencing individual page numbers for presentation at deposition or trial? Those files can still be converted to image (or printed) and a number applied for presentation. It’s common to simply use the Bates number as the prefix, followed by a sequential number, so page 6 of the 45th file in the production could be stamped like this: PROD000045-00006. This enables you to tie back to the production, yet only convert to image those files that need to be presented.
So, what do you think? How do you handle production numbering in native productions? 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.