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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 [email protected]

No Bates Numbers in a Native Production? Get Over It! – eDiscovery Best Practices

October 22, 2012

By Doug Austin

 

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.
http://www.cloudninediscovery.com/ondemand/free-software-trial.aspx

Comments

  • November 06, 2012 WTKJD

    When drafting a stipulation or electronic discovery protocol that includes native-format production, we routinely include a clause that if any party seeks to 'exemplify' native-formatted information by converting to image or printing to paper, they must generate the page-level Bates number as you describe plus brand or stamp the image or printout with the Hash Signature and any confidentiality designation, both of which are included in the load file. This covers all the bases for using native-format information as exhibits post production. It allows a party to identify and authenticate (or not) image or printed information many years later.

  • October 22, 2012 Kyre

    Often I will provide both the native Excel file and the accompanying images of that file. That way the party requesting the Excel gets the document in its native format, but I also have a shared set of Bates numbers to discuss the document at the page level. Granted, the image still does not show the formula. But at least we can discuss the formula at a particular Bates numbered page. FWIW, I also produce Excel images with column letters and row numbers on every image to better understand the relationship between the native and image.

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