To Native or Not to Native, That Is the Question

14 March 2014 IT-Lex Technology Law Publication

IT-Lex Technology Law

Here at IT-Lex, we write a lot about the form of producing documents. (For instance, see here, here, here, and here) Producing in TIFF format has long been the standard-bearer in electronic discovery, while PDFs are a second-favorite. However, these are not the only two options a lawyer has when complying with a document request. One often overlooked possibility is producing documents in a document’s original file format, otherwise known as native form. Native production means that a memorandum written in Microsoft Word will be provided to the opposing party as a word document. This is an important tool for any litigator to have in their eDiscovery arsenal as the cost savings associated with native production are substantial.

Cost Savings

By choosing to produce in native instead of TIFF, an attorney could save her client tens or hundreds of thousands of dollars in costs. The reason it is so much cheaper to produce documents in their native format is because it eliminates one or two of the most tedious steps in document production. When documents are produced in either TIFF or PDF, each individual computer file must be converted from their native form to a different format. For TIFF productions, after the conversion, and before production, a load file consisting of the text and other data from the document must also be created because TIFF documents are not searchable. Without a load file, the documents would be difficult to use and review. This conversion and load file creation is one of the most time consuming, and thus expensive, stages of processing data for production. On the other hand, native files do not need to be converted nor do they need a load file since they are usually already searchable.

But, before you rush off and adopt an All-Native-All-The-Time approach to document productions, certain exposure risks and challenges unique to native production need to be evaluated.

Exposure Risks Related to Metadata

Because native files are produced as they are regularly used and stored, the documents are produced with their metadata. In the adversarial world of litigation, as long as ethical and legal standards of compliance are met, most lawyers take the approach ‘less is more’ when it comes to discovery responses. Thus, it can be uncomfortable to voluntarily provide an opposing party with more information than necessary. However, producing metadata is much the same as producing any information in discovery. Risks of privilege waiver, or disclosure of sensitive data can be minimized as long as attorneys remember to include metadata when conducting a document review. Additionally, information stored in metadata is frequently irrelevant to the claims and defenses in a case. For instance, metadata is unlike to affect a typical slip and fall action. For more on why producing metadata is not as scary as it seems, see episode 3 of IT-Lex Productions.

Technical Difficulties

One of the major downsides of using native files in discovery is that it can be more cumbersome to review, redact, and label native files. With paper, TIFF, and PDF formats, it is easy to redact and bates number each page being produced. Native files cannot be modified, thus it is impossible to make redactions or add bates numbers without modifying a document. If a document needs to be redacted, it must be converted or modified and saved as a new document. Attorneys can work around this problem by recognizing that a document production can involve different formats. It is possible to produce all redacted documents in TIFF or PDF, but keep all non-redacted documents in native.

Reviewing documents in native form requires the right document management software capable of handling computer files in a variety of formats. Occasionally, issues can arise if there is an unusual file format. On the other hand, anyone can review paper documents, and all modern computer systems can handle TIFF and PDF documents. Native documents are also more difficult to use in depositions and trials. Since many programs do not have preset page breaks, a produced document may not always be printed in the same way.

eDiscovery Protocols to the Rescue

As most litigators know, successfully navigating the intricacies of electronic discovery involves adopting the mantra “Cooperation, cooperation, cooperation!” Many of the downsides of producing in native can be avoided, or mitigated, through agreement amongst the parties. For example, counsel can agree upon the manner in which documents are printed and displayed, whether as exhibits to motions or during depositions and trial. Issues with bates numbering can be solved by labeling documents only when they are printed and used as exhibits. In this scenario, the party using a specific document would be responsible for bates labeling instead of the producing party.

What The Courts Say

Many courts have addressed whether or not a party needs to produce documents in native format. Rule 34 of the Federal Rules of Civil Procedure governs compliance with requests for production of documents. The Rule allows a requesting party to specify the form in which electronic data is to be produced. A responding party is then required to follow the instructions or file a timely objection. Where such an objection is lodged, some courts require a responding party to comply with the requested form of production unless they can show an undue burden, while other courts have stated that it is the requesting party’s burden to show a specific need for native format.

If a requesting party fails to specify their desired form of production in a federal case, there is generally no presumption towards producing in native format. All that is required is that a party produce documents in a reasonable useable form. The general rule is that a requesting party who fails to specify a form and later compels the production of documents in their native format bears the burden of showing a need for the native documents.

While many states have a rule similar to the Federal Rules of Civil Procedure Rule 34, some jurisdictions presume parties have a duty to disclose metadata to opposing counsel. As always, it is important to consult local rules and cases prior to deciding on a form of production.

Concluding Thoughts

When a party has the option to produce native documents, the case for doing so is strong, namely because of significant cost savings, and any potential issues can usually be addressed through production agreements. When there is a low risk of increased exposure with metadata, and few documents have to be redacted, the decision to use the native form is almost a no-brainer. Attorneys would be remiss to ignore this option for producing documents.

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